"countdown to pearl harbor." eri hotta and craig nelson with his book "pearl harbor from infamy to greatness" followed by an interview with donald stratton, pearl harbor survivor and author of "all the gallant men." we're taking your phone calls, tweets and e-mail questions live from noon to 3:00 p.m. eastern go to book tv.org for the complete weekend schedule. now a look at the regulatory framework behind marketing food to children. this was a policy on food law hosted by ucla and harvard. >> we nour going to pivot and move from science to law. we are very fortunate to have three law professors who are at the top of their game here with

us today representing ucla, berkeley and harvard law schools. led by our moderator, jennifer pomeranz, she's a clinical assistant professor at the college of global public health at new york university. jennifer? >> thank you, michael. we have a very exciting panel. we'lling getting into exciting issues, the first amendment and ftc authority and then a specific policy option by steve sugarman. we'll start today with jacob gersen from -- i'm sorry, we're going to start today with eugene volokh who will be setting the framework for the first amendment and its opportunities and restrictions on marketing -- on restricting food marketing to children. and then we will go on to jacob

gersen. he is a professor at harvard law school. and then steve sugarman who is professor at berkeley's school of law. thank you. >> speaking of public health there was a crisis narrowly averted. i'm going to talk briefly about the first amendment issues that are raised here and i'm sure we'll have lots of opportunity to discuss some of these legal questions in more details in the q&a. so back in 1975 and '76, the supreme court first concluded that commercial advertising is constitutionally protected. it's interesting to see how the political veilance on this has shifted. certainly on the court and i

think some measure among the public as well. back then it was very much a liberal cause. justice brennan was a major leader in this, soon to be joined by justice blackmon. justice marshall was usually on board as well. the moderates on the court, powell and stewart were usually, too. the big dissenter was justice rehnqui rehnquist, often though not always joined by justice berger and o'connor and justice white. so justices on the right and white was a moderate. today the issue has flipped. i think on the court and among the public as well. generally speaking, for example, the most recent commercial speech or kwausy commercial speech case ous basically the five conservatives, plus justice sotomayor arguing in favor of protection for commercial speech, broad protection for it. and three justices arguing in favor of narrower one, all of

them justices base cically frome left, o'connor and breyer and kagan. the legal rule has also somewhat changed over the years. in the mid-'70s, it looked like commercial speech would get a lot of protection. from the early '80s to the mid to late '80s, it looked like the court was retreating from that, chiefly driven by its conservative wing. since the '90s, there's been more and more protection for commercial speech. by commercial speech, i simply mean commercial advertising. that's what that label means. it's not all speech sold in commerce, movies, books, routinely sold in commerce but commercial advertising. the formal legal test seems to remain what it was before, which is that to be protected, commercial speech has to be not false, not misleading, and there are interesting questions of

what that means, and not proposing an illegal transaction. once we conclude that the speech is true and proposes a legal transaction, the government can still restrict it if it's got a substantial enough interest. and the law directly advances that interest. and is not more than -- no more extensive than necessary to serve the interest. that's the formal legalese and it tells us virtually nothing. what counts is a substantial -- more important, what advancement is direct and what is more extensive than necessary mean? those are legal terms that may sometimes help guide legal analysis but they don't actually resolve problems before the coordinating material way. the work is done by the precedence, by the particular holdings of particular cases and by the other doctrines announced at times as to what counts as direct advancement and such. and here's where i think we can get more directly to the

question of food marketing and then bring in the question of food marketing to children. the most helpful way probably of articulating modern first amendment commercial advertising doctrine is that the government cannot restrict advertising because it's afraid that its recipients will be persuaded to make foolish choices. that was the decision at virginia pharmacy back in 1976. that is something the court retreated from in the '80s but went back to and most forcefully went back to the 2000s and 2010s. that is expressly stated by the court in the sorrow decision and in a decision called toms. so that's an important principle to keep in mind. in fact if you look at this formal legal rule, you could say, yeah, we have an interest in preventing people from drinking, let's say, or drinking too much. we might want to completely ban alcohol advertising or alcohol

price advertising or this or that. and would that directly enough advance the interest? you can talk a lot about that. but the working principle that's doing the job is this other principle which is that you can't restrict advertising for legal product simply on the grounds that you're afraid the advertising will be too persuasive. you might require disclaimers. that's one way in which commercial advertising is different from other kinds of speech. but you can't ban it for fear that it will lead people to make decisions that are bad decisions. so that's the general principle. of course, one question that arises with regard to general principles, are there exceptions for people whose judgment you don't trust, more than you distrust the judgment of most people? and one obvious category for that is children. it turns out the supreme court

has not told us which kind of advertisements towards children are admissible. but it has mentioned two things. one outside of the commercial advertising context but also outside of high politics. this is in the context of violent video games. the supreme court rejicted the notion the government generally has a free hand or even materially freer hand in restricting speech to children on the grounds that's children don't know any better. instead, the court applied the same test for restriction on violent video games being sold to children as it would have applied restrictions on violent video games being sold to adults. it was open to arguments that they're so dangerous and harmful that they ought to be destricted, as in principle it's open for that even for adults. and maybe in practice it would take different kinds of evidence. maybe less evidence as to children that the -- than the court would demand us to adults. the court found the evidence to children is insufficient. it demanded a very high level of proof that the majority of the

court did not -- did not find to be adequate. interestingly, that decision was also -- was split in an interesting ideological way. the majority consisted of three liberals and two conservatives. and the dissent consisted of three conservatives and one liberal. the majority was justice scalia joined by justice kennedy. kennedy has long had a very broad view, broader than anybody on the court, of first amendment protections generally. and ginsburg, stephens at the time and souter. and the dissnts was justice breyer from the left and justice roberts, scalia from the right. we also have from the court the decision in laurela tobacco.

most relevant, it struck down a ban on billboard advertising of tobacco. that basically made it impossible to advertise tobacco in virtually any area in this particular jurisdiction -- or -- let's say a wide range of areas. the rationale was, you put to a billboard as opposed to the pages of some adult magazine. some magazine aimed at adults and lots of kids can see it. say, well, yeah, maybe lots of kids can see it but lots of adults can see it. you can't restrict the speech available to adults, at least in any very broad way, simply to shield children. that's a principle the c.a.r.ou developed before. it applied it to commercial advertising. that's an important point because a lot of the kinds of advertise -- restrictions in advertising to children that

i've sign, whether it has to do with food or whether it has to do with violent video games and the like, you look at the restrictions in advertising to children, and it's things like, well, advertising in any medium where at least 35% of the audience is children. if 35% of the audience is children, 65% of the audience is adults. and the court is -- but the court has strongly signaled that you can't restrict speech to adults, at least in a substantial enough way, simply in order to shield children. that's an issue that we'll have to be dealt with. how much is too much? hard to tell. what if it's an audience that 90% children and what if there's still lots and lots of advertising that does reach adults? maybe the court would say, well, that's good enough. that leaves enough channels to communicate to adults and that may be relevant for commercial advertising purposes but that's the legal issue. let me close with one other thing which is just -- two related things that are looming over this question. so you remember, it involved

advertising of tobacco. tobacco is totally prohibited for children and on top of that, certainly many people, very many people, fortunately, i'm -- i've always been one of them, just complete completely -- tacco altogether. their children, aiming to teach them the same when they grow up. my sense it very few do that to sugar, let's say or white bread. and maybe they should. maybe shthey should but that's t where our culture is at or judges tend to be at. there it seems to me. sure, you shouldn't be drinking, guzzling gallon after gallon of coca-cola. but if you drink tefr so often or have a nice dessert every so often, that's fine so long as your overall eating portfolio is good enough. so that cuts against the constitutionality of really broad restrictions because it

suggests that, in fact, for many of the recipients, even adults this is not legal or maybe even harmful but if children bug their parents, can i have a twix bar? sure. one. we'll control how many you have. but this isn't the sort of thing that should be completely cut off. the last thing is my sense of conventional wisdom is, let's say not so much science but government-linked science having to do with food is not necessarily covered itself in glory in the last 50 years. whether it has to do with the food pyramid or recurring questions about salt. is it so bad, is it not so bad? questions about coffee, alcohol, a lot of things. there are certainly people who would think that the lovely looking doughnuts and muffins out there -- doughnuts -- bagels and muffins out there are bad for you and others who disagree. the bottom line is, i think,

that this is something that affects judges. that judges don't like the idea of the government playing the nanny, telling us, not just what to do. it has the power to do that, but telling us what to think and what to like by restricting what people can say to us. they are open in some measure to that when it comes to children because, for children, they do need nannies, although the suspicion, many prefer the people be the nannies, but the more it looks like this isn't like, look, you shouldn't be using crack cocaine. very little doubt about that. the more it looks not like that but like, well, different people have different views. some have a little more deszerts. some have a little less dessert. and we are not really sure how much dessert is too much. the harder it will be to persuade judges to uphold -- what they would see otherwise as first amendment violations.

[ applause ] >> thank you, eugene. so our panel is the law panel. and i think that means we're trying to address three questions. what are the sources of law or legal authority to address food marketing to kids? two, what kinds of legal tools or mechanisms -- mechanisms are at the state's disposal or at our collective disposal. and three, what are the legal restrictions on the exercise of that authority. yes, sources, mechanisms, restrictions. and professor volokh talked about some of the constitutional limitations on the state's ability to regulate or control speech in general and more to the point, commercial speech. and i want to largely set those issues aside, though know that the state of the doctrine is

such that the government does restrict commercial speech all the time without running afoul of constitutional limits. and the question is, in what context and in what ways is that constitutionally permissible? okay. that's the background. okay. now it's impossible to discuss this issue, at least in this country, the agency, administrate of agency, the federal government agency response to food advertising to kids without being in the shadow of the so-called kid vehicle making proceedings that took place in the 1970s. i think it's fair to describe the aftermath even today for the federal trade commission as the kind of agency equivalence of post-traumatic stress disorder. this was a bad period for the agency. they were engaged in a rule making to address marketing to kid, largely on grounds of dental health and hygiene. i think they felt they had the scientific evidence clearly under foot, really easy

scientific case, foundation. and the political hullabaloo that resulted was the sky had just collapsed. and it culminated in the enactment of a statute, an act essentially telling the agency to cut it out. said, congress, the commission shall not have any authority to promulgate any rule in the children's advertising proceeding pending here or in any substantially similar proceeding on the basis of a determination by the commission that such advertising constitutes an unfair act or practice. an unfair act or practice affecting congress. for those of us that study agencies and administrate of law and politics in general, this is rare. it's hard to get congress to do anything and to get congress to uniformally pass a statute telling the agency not to engage in the very thing they're doing happens, but it is not at all the norm. now one conventional understanding of this statute is that it is a

jurisdiction-stripping statute. and so sometimes when we discuss this issue, it is said the ftc no longer has authority. it no longer has authority to issue a rule or regulation addressing food advertising to kids. and i think this is just incorrect. and i want to say a quick word about why and articulate precisely the things the agency has legal authority to do, even if there is not political authority or legitimacy or will to do so. so as many of you know, administrate of agencies like the ftc or fcc or fda are restricted themselves by three sources of law. first the constitution. so if congress can't do it, then the agency can't do it. the agency cannot run afoul of the constitution any more than congress or the president can. second, so-called enabling or organic staltutes. so the ftc act gives the ftc

authority and specifies what they may do and how they may do. the food, drug and cosmetic act gives authority to the fda and what they may do and how they may do it. third, the administrate of procedure act, viable for the bureaucracy which contains a set of required principles and mechatisms the agencies must use to do certain things. specified judicial review and the like. so what? this is the interesting panel. the fda classifies everything into rules and orders. rules and orders. a rule means the whole or part of an agency statement of general or particular aplibability and future effect. and a rule making is just the proceeding that must be used to issue a rule an order means the whole or part of a final disposition of an agency matter

in a matter other than a rule making. that is to say, if it's not a rule if it's not a rule make, then it is an order. and an order results from an adjudication. kind of crassly put, you can imagine when the agency is making a general rule, they are acting like congress. making a general policy that has legally binding on the world. and when they are issuing an order, they are acting like a court considering parties before it, speak with particularity, usually in a backward looking way, okay? rules, orders. yeah, it's very exciting. what did you learn today? well, mom -- okay. so what does all that mean? well, what's clear from the statute and from that discussion is the ftc has no authority to issue a new rule classifying advertising to kids as an unfair act or practice. but there are at least four things they could do that would accomplish 90% -- 90%.

i say with precision as though i know it. 90% of the goals. so just for a little background and over simplification. the unfairness doctrine and the deception doctrine. the unfairness doctrine requires the conduct here adds to kids is unfair and, therefore, legal if it's, a, likely to cause substantial injury to consumers. b, consumers cannot reasonably avoid it. and, c, it's not outweighed by offsetting benefits to consumers or competition. that's the basic, you know, unfairness idea. by contrast, an ad or a product claim label is deceptive if it's likely to mislead a reasonable consumer and the claim is material. usually material to the purchase decision. so just looking at the statute, what can the ftc do? they can issue a rule on food

advertising to kids, not using the unfairness doctrine but using the deception doctrine. this is something that professor pomeranz has proposed. clearly allowed. second, the ftc could issue a rule classifying food advertising to kids as unfair. that is using the unfairness doctrine but using substantially different, presumably new after 30 years of research, evidence. and there would surely be litigation, the agency would give deference on the question of whether substantially similar in the statute allows for or does not allow for the agency to do this. okay. i think we have supreme court precedence squarely on point now. third, the agency could issue a nonbinding guidance document, essentially announce that the agency interprets the unfairness and deception policies to preclude advertising to children of a certain age, certain hours,

or a certain product to be unfair and deceptive. and that would have no legal force in and of itself, but it turns out when you're a federal agency with enforcement authority and you announce that, you think the statute requires this particular conduct, an awful lot of people start changing their conduct. i'm not a fan of this particular mechanism or policy making in general, on the record. but i'm honest, so there it is. fourth, the agency can proceed through case by case adjudication, that is to say bring individual enforcement actions, as it sometimes does, against individual ads to kids. either urging, claiming, showing they're unfair or deceptive. they clearly still have that authority, and at first cut, the problem is that you have to go case by case, ad by ad, product by product, company by company and get a cease and desist order. and given the volume of ads we're talking about and the volume of products we're talking

about, that just looks like a kind of absurdist, realist version of whack-a-mole. as though whack-a-mole is not absurd. the only reason that might be wrong has to do with a little weird band of administrate of law doctrine. in the 1940s in lit sgags involving the s.e.c. and jenry corporation, if they have both rule making authority and adjudication authority, which not all agencies do, you can announce general policy binding general policy using either mechanism. and so agencies like the national labor relations board and fcc regularly announce new general binding policy in the context of individual enforcements or adjudications. so if the ftc in an action against a single ad or company were to conclude that an entire class of food advertising to kids was unfair, i think that

conclusion either could be or would be binding generally on other ads, other parties and on the agency itself in the future. all of which is just to say the agency that's had the lead on this issue historically has plenty of legal authority here. and would use his political or legal will to use it. if political will is lacking, as it sort of understandably might be, what does law do? well, usually we try to take advantage of the national desires or incentives of the parties rather than fight them. it's hard to go around telling companies to stop doing this thing that makes them a huge amount of money. presumably, they'd push back. so another thing to do is facilitate the process of companies suing each other. companies suing each other to

stop these practices. and one way to do that would involve a statute known as the landham act. the statute is mostly about trademarks but it turns out another provision says that it's intended to protect persons engaged in commerce against unfair competition. more precisely, creates civil liability for anyone who in commercial advertising or promotion misrepresents the nature, characteristics, qualities or geographic origin of their goods or services or another company's goods or services. and without going too far into the doctrinal details, the idea is like if you make a false claim about a product in a commercial advertisement where false doesn't mean false. it can be true. but it can be misleading or confusing. confusing. and that statement actually deceived or has a tendency to deceive a substantial segment of the audience and likely to

affect the purchasing decision, then there's a liability. and you can sue. now not you or eye. not a citizen sue provision but competitors can sue. so you can imagine lawsuits in which cereal companies are suing each other for advertising to kids, covered by the landham act which i think would be a relatively straightforward legal case. i think even i could win that legal case. and probably only people in this room will remember that it was a la landham act case like this as the issue of the palm verse coca-cola case. palm suing coke allege its description of its own pomegranate juice was fraudulentry deceptive. the supreme court said that's fine. that's fine. so that's something. it doesn't do everything. what else might we do.

some of the ftc act allows for citizens to sue, too. you do see class action lawsuits for advertising campaigns that are confusing or deceptive or fraudulent in this particular way. and whether those succeed really depends s on, i think, the mer of the claim but the mechanisms of the class acregation same. so the class aggregation is working well, then those suits also, i think, remain viable. now what all this leaves us with is a question about remedies. when something is legally prohibited, the right question to always ask in my view is, okay, what's the remedy. that's illegal. what's the remedy? what happens if i don't comply with the law? and in a lot of these cases when we're talking about cease and desist orders, the remedy is someone says stop it. that's the remedy. your kid misbehaves and your remedy is to tell them to stop

and then they stop. but in the context like this, that allows for recurrent misses of conduct you're trying to regulate. that's an inherent problem with that sort of legal or political remedy. not so damages, frankly. when people pay for the injuries they cause, that kind of system works pretty well, or at least differently. i want to note in a similar vain, narrowly or broadly, hopefully we can work that into the discussion a bit later on. now the other night as i was working on this stuff, i was imagining, as i often do, a conversation between myself and ma martian aliens. i don't know. what do you want from me. so childhood obesity is this

huge, massively dangerous problem that is devastating society and it's almost become the norm both domestically and internationally. and we're pretty sure the problem is children are eating a lot of food that's bad and not eating food that's good. aliens. ugh, that sound awful. what are you going to do about it? us. we're having a really big political fight about it right now, actually. some people want to make it harder for companies to advertise to kids on tv and the internet, and others think advertisers should exercise self-restraint. aliens, huh? so you're saying there's this really dangerous product out there that kids are putting in their bodies and the big fight is about whether to make it harder to talk about the really dangerous product? so you're talking about talking about the harmful product? huh. back on our planet if it causes systematic injury to people who

use it, our system lets them sue. and we at least require disclosure that it's really dangerous. and if it's really dangerous when used in the way anticipated by a producer or seller, well then sometimes we just ban it. when conduct causes injury, when a product causes injury, we try to regulate the conduct, not the talk about the conduct or discussions about the conduct. aliens. oh, well. good luck. >> i' so i'll close with just a quick anecdote. my wife said, what's the conference about? i said it's great. it's going to be an amazing conference. it's about food advertising to kids. and she said, huh. isn't that a little narrow? and at first i got really defensive.

you're -- [ laughter ] and i said, are you kidding? we won't even be able to make a dent between all the scientific work and policy work and legal issues. we won't get anywhere in a day-long conference to food advertising. but i got a little less defensive, not until the plane ride here, but on the plane, because i think it is excessively narrow in some sense because we are talking only about the way that we are allowing very harmful or dangerous classified products to be advertised or marketed or talked about. and given the scope of ads that we're seeing on tv, on the internet, in the games, on the apps, everywhere, i wonder if some of our attention might also be spent next year -- at next year's conference on the underlying products or conducts themselves. we know a lot. i think kelly would say, a lot about which foods are good and bad for us and why.

and maybe some of our attention should be spent on how to get more of those into the marketplace and into bodies and some of it out of the marketplace and out of bodies as well. thank you very much. [ applause ] >> i didn't pay jacob to set me up this way, but i would have, had he asked. several years ago, the government went after the tobacco industry for violating the racketeering act. this is the act aimed at the mafia, and they actually went after the cigarette companies and judge kessler actually found the tobacco industry violated the rico act. a really serious charge.

and i think it was probably ten years ago, she actually found they violated it. she was stymied somewhat by her bosses on the d.c. court of appeals as to what she could order as a remedy. so she decided to try to have them undo some of the very bad things they did and some of the bad things they did was terrible marketing. and so they were going to have to publish all these ads and so on showing how bad they had been and asking forgiveness or something like that. and i don't think anything has happened. and the industry carried on its fight against this all these years since. and i have to say, i wrote at the time that it's interesting that she would focus on this as the remedy. jake just talked about what is the remedy for law violation. she had the power of dissolving

the entire industry actually under the law, although probably just be taken over by japan, tobacco nonetheless. she could have put philip morris and reynold and so on, laurel art out of business. what i said she should have done was she should have ordered the industry to reduce tobacco smoking prevalence rates by one-third. that would roughly arguably offset the horrible marketing practices they had. we probably would have had a third less smokers. introduce that, it would be done with. this is what i'm going to talk to you in a moment about, what we should do with respect to drug and food advertising to kids. i don't have any slides. i didn't do the kind of serious research that our early morning speakers did. i did my own kind of research. i carefully, on a promise of a

$2 reward, cross-examined my 7-year-old granddaughter. and i asked her whether or not she watches television and look at ipads and so on. and what -- does she know anything about brand junk food products. and sure enough, to my surprise, she knew about all these terrible products that we've heard about this morning. all the things marlene showed us. but as far as i can tell, she doesn't eat any of those products but what i've learned is it doesn't matter. she's eating equally bad other stuff that she gets incited to eat that's bad for her by watching all of these commercials. i now know when i go shopping with her to the famous berkeley bowl and she asks for me to buy her ice cream filled mochi in the japanese section that's actually caused by all those bad food ads that she's been

watching on television. i didn't quite realize that. so it's clear that there's a lot of call now for -- we have to do something about all this avalanche of ads. we've heard about it. it's sickening to see all of it, in many ways. and some of it is caused by public health leaders, like a number of the speakers here today. and it's -- what eugene said, i think, is a warning. you have to be careful not to, in my view, to cast this as sort of, it's the nanny state. we the elites who know better are going to use government. and then characterize it being the nanny state. i would think it's much better to say that it's parents who are demanding these changes. parents want to be empoured to control their kids lives in some respects. and it's just like we say that, why do we not allow people to sell cigarettes to people under 18 or to sell alcohol to people under 21? it's because parents don't want their kids to have the stuff

sold to them, and they can't realistically be expected to follow their high school kids around all the time. so we pass a law saying you can't entice our kids by selling this stuff to them. that empowers us to get what we want. we want to teach them about ma turks sensible exposure to alcohol or tobacco products. but we don't want you. we want the government to help us as parents be better parents. and i think that's what -- how we ought to put it here. parents want help. they want the government to help them, not to tell us what's -- parents what we want. and what is the question, what do we want as parents? and what i think what we want as parents is not to be able to be empowered to make much better choices for our children, but we want to be empowered to have our children actually eat healthier meals. i think there's a big difference there. that is to say, i think the focus is -- should not be on somehow combating the marketing.

the focus should be on the ultimate goal which to have kids eat in a more healthy way. that's what we should look at. so i think what we ought to do in response to this avalanche, this tidal wave of junk food marketing to kids is to enact rules that parents would want that would lead us to have substantially healthier eating by our children by requiring our food retailers to sell less junk food that's eaten by kids. 2 the way to think about it is to think about the climate change strategy that we have that's called cap and trade. forget about the trade part for a moment. basically, the cap in climate change says you have to have less carbon emissions. that's it.

you have to have -- every year we'll have less and less or lower the cap lower and lower down. it's sort of the same as the cafe standards for automobile gasoline. every year, you have to increase the amount of miles per gallon your fleet gets. 20 miles, 25, 30 and so on. these are strategies which enlist the support of industry to do what they do best but within government restraints. you guys figure out how to make the cars work at better miles per gallon. you're better at that than us. you figure out, you public utilities, how to have less carbon in the atmosphere but you'll have to have less. you figure it out. you use your technology. we're going to insist upon the outcomes. the outcome is what we're aiming at. and i would say, and i've been saying this for a while now, we should say to the food industry, the retailers, by which i mean the walmarts and safeways, the food chains, costcos and kmarts and other food supermarket chains, and the restaurant

retailers, any substantial share, restaurant retailers, you have to reduce the amount of junk food that you sell that's eaten by kids. that's what you have to do. and this regulation -- this regulation could demand these kinds of changes over time. we could tell a firm like walmart might end up facing the reality that for the next five years, every year, they have to reduce by 5% the amount of food that they sell that's junk food and consumed by children. so by the end of five years or seven years, we have a 25% reduction in the amount of junk food they sell that's eaten by kids. their expecompetitors would hav

similar targets although not exactly the same targets. we would measure you much junk food eaten by kids is sold by them now. the ones that have a better job and have a healthier blend of foods that go through their cash registers would have lower reduction targets because they would be rewarded for selling healthier food nuow and the one with higher targets and over time you have a coalesce sense through all the chains toward how much they would sell of their product that would be junk food by kids. we could have after a period of time, five years, seven years, some period, a dramatic reduction in the american diet by having a dramatic change in the number of junk food sold and consumed by children. this would be a way to respond

to this avalanche of advertising of this type of objectionable flood food to children. this is not that difficult to determine because the magic of bar code technology, once we decide and agree upon already, what are the bad foods? you know, what are the bad foods this can be labelled junk food. we have to get agreement on that. we will figure out what it is and we're going to have this agreement and we will say, that's it, those are the ones you have to reduce. it will be embedded in the bar code s whether it is or isn't and routinely measured and the firms all know exactly what they're selling. walmart would be great at this. they're really smart and know how to run the business and figure out easily very sensible ways how to change the mix of what they sell to have this

annual reduction to meet their quota. if we reduce the cap idea from the cap and trade we might be so good at this we reduce it more than their sergeant. if safe way was lousy at this and get a net redestruction to meet our goals of let's say 25% reduction. now, in taco bell and mcdonald's and olive garden and food retail retailers, restaurants would have the same kind of targets for them as well. you might even imagine potential safe harbor strategy if walmart's goal turned out to be 5% a year for junk food sold to kids, if they reduce by, let's say, 6% a year, the amount of junk food they sold period would automatically deem them qualified for reducing the amount they sold to kids without

having to monitor whether exactly it's children's eating reduction gone down or adults as well as children. that probably might be a good proxy for children's reduction and any rate, good for adults as well to have less consumption of this food. how would they do this? seems to me, that's the point, figure it out. business would be good at this. seems l would be lots of things they could do. walmart woucould eliminate some junk food products they know longer would sell and get their suppliers to reformulate the products. we heard that already this morning. make all of those doritos hea h healthier and none junk food. they could change their package size. they get it different. get the portion size different,

engage in marketing changes and change this position in the store. they could change what they advertise most of all when they can start advertising healthier things. there's a million things they could do and change the price of things and raise the price on the junk food they have and lower the price on junk food. a combination of things. they would figure out what's the best way through this so consumers actually, might be relatively unaware of the fact they took home shopping baskets of food products for them and their family that actually were healthier and turns out they would be, because these are small changes. small changes incrementally over five years are substantial changes. i don't see any legal problems. this isn't in any way run into

first amendment objections as i see because it's not hooking individual market conditions. i don't see other constitutional limits either, states, california, texas, florida, big states could potentially try this out on their own. hawaii is always a nice example. i don't think rhode island should do this because, you know, people that might go shopping, connecticut instead, i don't know. i do think a big state could try it out as an experiment. i think that would be fascinating to see. the federal government might try to encourage such a thing. let me say i think this kind of change could have an unbelievableably bigger impact than simply eliminating junk food marketing to kids. one of the problems is we have a whole generation of those already saturated with the

marketing and already have their habits and so on. it would take a while to wear off. we could have a more short term substantial and if it worked we decided 25% wasn't enough we could potentially ask for more. two more things and i'll stop. one, is that it's possible that, let's take the example of walmart again because they're america's biggest food retailer, thick they account for 20% of the food sold in regular supermarket type stores. it's possible they may find they can take the reductions, these reductions in junk food consumed by kids disproportionately in stores of theirs located in higher end neighborhoods. that would be bad if that turned out to be the case. i actually doubt it. the biggest gains probably would lie in changing the way what they sold in stores in lower

income neighborhoods. we would have to be concerned about that. this is a parallel problem with the cap and trade thing and don't want the public utilities to make nicer newer plants in area rich people live and dirty pants where poor people live, hotspots. we've learned how to do with this in cap and trade. divide walmart stores into two groups. one group have their lower income customers and higher end customer, they have to have equal goals and meet goals in both communities and proporti proportionately meet the goals. it's a concern that i think can easily be resolved. what's the political prospect? this sounds like a dramatic change. tell the tobacco customer to lose 25% of their customer and walmart to lose their junk food

customers. it's daunting. all compared to what? as long as the rest of you are like, my colleague sabrina that will talk this afternoon, like this unbelievableable swarm of bees at the industry. stinging the industry, death by a thousand cuts. as long as they are after them, more soda taxes, if they're constantly under attack with a million new different regulations and so on they're being subjected to, they might find my solution more appealing to get rid of this micromanagement what we do. we want to sell our products. as long as they're legal, if you

don't make them illegal, quit micromanaging this stuff. we'll cut down the bottom line. we can live with that. they may find this kind of option more attractive to them. i urge the rest of you to go after them with zeal because i need you as a shadow i have to operate under. i think it's a possibility. i hope you see i view it as a response to the advertising problem but not response -- i responded to what jacob said at the end, not a response that does into the advertising, a response to the bad advertising and gets us what we as parents actually want, healthier eating by our children. thanks very much. >> thank you so much. can you hear me?

thank you so much. what a great panel. we will have times for questions and we have two microphones r m roaming around. i have two clarifying questions. you didn't talk about the advertising cases. the supreme court particularly harsh on attorneys and theories they're trained in the art of persuasion, exactly what the marketers are. if you could talk about it? >> there has been a long standing deep tradition completely missing as to advertising of food, totally advertising not only something very broad very deeply embedded into the legal profession. you think if there would be any kind of regulation the justices would be particularly open to, it's the regulation that their

bars had promulgated and became very afternoon class issue that if for whatever reason you were allowed to advertise and did, you were a low class person. despite that the supreme court uniformly held but one exception the florida bar, an anomaly. and attorney advertising is constitutionally protected. now, i did mention misleading advertising can be restricted. the supreme court has underst d understandably recognized anything can in principle be labeled misleading. there are boundaries to that. if somebody, for example, guarantees results. that's not just misleading, a lie. no lawyer can do that and there are limits to the way the lawyers can portray themselves and stall results that will suggest that will end up being

the nearly certain result in your case. beyond that, lawyer advertising is constitutionally protected. to apply this to other advert e advertising and somebody says, look, this cereal is fantast fantastically good for you. it will cure all that ails you. this cereal is much lower in sugar than other cereals and turns out it's false and misl d misleading, higher in sugar and lower in corn syrup and not any better, that could be restricted. i take it that's not what hooks the kids, right? no kid would want to buy it for that reason. if they say this is delicious, it's matter of opinion, that's what's dangerous, they are delicious. if they tasted bad, nobody would beat them. i think the lawyer advertising case, if anything, cut the other way. >> thank you. one more question for jacob.

you mentioned the administrator procedure act, rule-making authority. my understanding is the ftc has a different authority to take more like a 10 year period. could you talk to that? >> excuse me. i don't think there's a temporal specification of that rule making. >> i mean historically it's taken a long time. >> like other agencies, they could be very involved and take sometimes three years or 10 years and sometimes three months. [ laughter ] >> i don't know why the rest of you didn't laugh. the pace overall, we have done some work on this. sometimes for some rules it's quite long and other rules, it's quite short. i think there is this idea out there for an agency to do anything, it takes a decade, and

ha, what a waist of time -- waste of time. it's not true even when you factor in litigation. it is the case with higher profile higher controversy matters involving many more players and parties who care, comments you receive for example are participants that want to be engaged and subsequently challenge litigation go up, no question about that. i hope the take away from the talk is not that i champion or expect the federal agency to solve this issue. i do not. i think there is legal authority to do so and we should understand as part of the overall context in which we are opera operating. that's all. >> thank you. any questions from the audience? there's a microphone coming your way. >> a question for jacob. for those of us who prosecute false advertising by large

companies, what do you see in your research or collaboration current issues that might be right for prosecution by energetic state level prosecutor, for example the mounting evidence against sugar as, you know, contributing to so many chronic diseases? do you have something like a wish list of, you know, what some state level prosecutors could go after as misleading? >> i think the short answer is no, but it kind of exists already. if you just look at the litigation in the california courts right now, it will cover, gosh, probably 90% of the things i could imagine suing companies for for false advertising or false labeling or false product claims. it's in some other states, too, but clearly happening here. those primarily are civil suits, not brought by the state ags. depending on state law they could be. i suspect in california, yes. i don't know that body of law

quite as well. between new york and a hand full of other states we have seen a massive ininstruction of class action attorneys into this area. my theory is they have not yet found a theory to get them home. but i'd be shocked if one or two of these cases and subsequent ones don't come back tore the plaintiff's side but overall to this point i would say they have not been wildly successful. what might change that significantly if the companies hadn't withheld information like the tobacco and nicotine addiction issue, there were parallel ideas with respect to sugar or some other like grbt that might sway whether it's particularly relevant or not but i'm just speculating. >> jacob, i want to ask you a follow-up question. lots of advertising, all sorts.

let's assume there were no advertisements that would be considered misleading under the definition of misleading than most lay people and judges would likely accept, somebody lying or suggesting something that was not sound. let's say therefore all of the promo promoters of junk food couldn't down play their sugar. they could say some hundred of grams of sugar, not sure what that means to a 14-year-old. what if they started saying our twinkie has lots of delicious sugar, what practical effect do you think that would have on consumption? do you think that would actively materially chalk change the habits of kids that would lead them to consuming less sugar another

another -- eats by parents' decisions or their decisions? >> one thing i should point out, we are now doing an annual food survey where we do a lot of experiments with labeling particular claims like this and ask about changes in perception or underlying products and reported purchasing behavior. when you see grams of sugar, what effect does that have? when you see recommended grams of sugar, what effect does that have? we have recommended gmo and percenta percentage percentages, let's say it's an easy question to ask and answer. we should ask and answer that question. if it turns out a claim like that is truthful. we opt out of the fraudulent or deceptive claim or deceptive truth, a real classes category of conduct.

if it's a truthful claim that impacts behavior, we ask does that impact behavior. you're not asking does that or not allow a legal claim against that company, you want to know what effect that would have on the kids. >> my suspicion is people talk about misleading claims. i'm sure there are genuinely misleading claims out there i'm happy to see suppressed. my suspicion is a lot of this is the sense if only we could get people to know the truth and say, oh, my god, there's all this sugar, i really don't want it opposed to, yeah, sugar, that's what i want for my food. my suspicion is some people are exaggerating the degree people, once they learn the truth, will change their habits and my suspicion is they're trying to have this misleading argument as to non-misleading woensz.

you can shoehorn them and we just don't like it into the misleading category. >> the latter may happen. the formal data i have and i suspect others may know about other data in the room, a significant difference in sugar across two different products or products label significantly impacts the willingness or desire to purchase. that's what we've been finding. >> actually, uk mars is an advertising plan they're doing, saying it's a sometime treat. maybe somebody is analyzing it. i'd like to talk to the a.g. later. >> hi, yes. i'm katie from loyola law school. i'm a tax expert and i'm wondering about the role of tax proposal to several of the problems we discussed. if one of the problems is exposure to marketing, there's a tax proposal we could make, we

could extend the period of time over which marketing expenses are dibbl are deductible, they're currently in the year they're in cured and income producing assets have to be capitalized over a 15 year period. short of eliminating the deduction we could increase the period of time over which marketing expenses are dibble therefore reducing the price of marvegting and reduce exposure and make a tax proposal to encourage reformlation of products. we could tax unhealthy foods, not just soda but all unhealthy foods and provide subsidies to healthier foods to encourage refo reformlation. we'd have to start with some type of classification system. to avoid problems with cross border transactions i think we'd

need a federal system of food classification, something like front of package and stoplight labeling. i'm wondering what the panel sees as the role of tax regul e regulating opposed to command and control regulation. >> i think the policy panel is going to be talking about tax a bit. also, rosa delara had a bill about taking away the tax deductibility of the marketing of unhealthy food. >> i will say, it doesn't devoid the constitutional question, recasts the constitutional question taxing speech just because you want t less of it or removing a tax exemption generally available to most business expenses. a tax expert can give you all the details. usually the things you do to sell something are tax dibb deductible. you remove that precisely

because you want to have less speech. the courts say, okay, it's a speech restriction. may be constitutionally peach restriction for some other reason but they have been struck down on those grounds. >> take the mike if you'd like to response, please. >> my proposal is to eliminate the deduction. my proposal is not to eliminate the deduction because i think that sort of objection could be raised because business expenses generally are deductible. my proposal is to put marketing expenses on exactly the same footing as other legitimate business expenses far beyond the close of the current tax year. under current law the deductibility of marketing

expense is tremendously t tax-favored relative to creating tax assets. it was immediately deductible because we were talking about the cost of placing a newspaper advertisement saying, sale this saturday. now, they're primarily to create bra branding, a capital asset, which should be amortized like other investment income producing assets. it should be am moretized and delay and deductibility increases the price. i'm not talking about elimina eliminating the deduction, about reducing the tax savings and present value by increasing over the period of time it is deductible, which is consistent with all other capital assets that have to be am moretized. >> i thought there was a suggestion in the alternative of denying it.

maybe i misheard. this is a common issue h. you can sometimes characterize the same thing in two different w ways. there are plausible arguments why advertising can be seen as normal ordinary expenses because it is supposed to bring about more sales tomorrow the same way higher other salesmen might do it for other businesses. i will say, it's an interesting question to what extent legislative purposes make a difference in constitutional claims and some interesting complicated case law. when the judge looks at it and s says, you know, this wasn't part of some overall attempt to rationalize the standards of the treatment of capital investment. it looks to me like somebody was trying to suppress speech they don't like or have less speech that they don't like. so they found this lever.

my sense is the judges will pay attention to that. it's true. if you can point out it was always a departure from basic sound tax logic and we just happened to discover it and will return to it, maybe you want to persuade them, sure. >> do we have a question up here if somebody could bring the microphone, please? >> i think this tax proposal made a very clever one. i take it. a good idea on its own merits, a policy matter. i take it it would apply to all marketing, not just speech advertising and all products not just junk food. you run into a lot of other political opponents of it as well, not just the food industry. it sounds right to me as an economic matter to the changed nature of marketing and i don't think it would be just speech

adverti advertising. >> you're right. the broader idea is it applies to all marketing, then, sure, that would have less of a fist amendment problem. i was assuming it wouldn't be so, be a pretty difficult political challenge. speaking of difficult political challenges, steve, i'm not sure how you can get that kind of legislation passed having a cap if not trade regarding jungk food marketing to kids. also, you suggested that might be an alternative too thousand bees marlene is going to sic onto the food industry. they're not mutually exclusive. we have an example of something happening voluntarily.

in the soft drink industry where they have set a goal of a 20% reduction in calories that they sell by 2025. in britain, they have a quicker schedule of reductions. it might be 25% by 2020. just last week, pepsi-co announced that it was going to change, on top of that, a voluntary reduction. they're going to aim to have three-fourths of their beverages under a hundred calories per serving, three-quarters, 40% or so. there is some voluntary movement in exactly the direction you're sugge suggesting. i haven't seen the candy industry and i'm not sure what other products you would consider junk foods. at least there's some progress sort of along those lines.

>> i note when you savol tarry standards and guidelines, you don't really mean that. there's no voluntary standard adopted, a standard adopted by private industry or private parties in the shadow of government regulation. the question is what is the threat on the other side, such that private parties decide to engage on a particular scheme of self-regulation with particular standards and what the government will or won't do partially a function, of course, of what the public is talking about and interests are talking about. to think of it as voluntary and apart from, that shadow is not entirely right. >> the more people that would get behind my proposal, the more we have voluntary -- we know that the industry did agree reduce the amount of -- the processed food industry agreed to reduce the amount of calories they sell and they've more than

exceeded their goals. turns out they probably didn't change anything because they were headed in that trajectory anyway. i think this is right. pepsi would agree not only three-quarters of their bever e beverages are less than 100 calories but agreed three-quarters of the sales were beverages under 100 calorie, i would be excited. that's good. this also reflects the idea and range of products are. they'll sort it out. if they can meet these goals, these are the goals they ought to be excited heading towards. >> marlene will still unleash her thousand bees and say it's not fast enough and i think that's appropriate. >> steve, i want to ask you, are you coming for my steak? >> that's what a lot of people outside this room really suspect is going on.

there's talk of restrictingti restrictingtisting to children. they don't knsnoknow any better maybe we should restrict that. the suspicion we're after is maybe banning them. maybe the aliens jacob admires seem to know that. >> they're not friends, i just know them. >> maybe that suspicion is well-founded. as i understand it, your proposal, maybe walmart has to restrict what ends up being sold to children. but the person who consumes probably more junk food than anybody else in my household is my wife, who is an adult, who knows what she's doing, she's not obese. she probably would be healthier if she ate a little bit differently but she's choosing to enjoy life in a hlittle bit different way. my sense is your proposal would end up doing that. of course, it's just for junk food and we all know better.

my suspicion and suspicion of others and in this case i agree, too, it starts with theodore rit toes and eventually the steak and all these other things. that's why a lot of people you talk about political problems, a lot of people have a political reaction to this and they know where this is heading. it is heading to pervasive attempts to change through restriction through making it much harder for not just children to eat what they want to eat and make healthy choices they want to eat. tell me that's not where it's going. >> it's where it's supposed to be going. no individual choices would be preve prevented. your wife could eat as much as she wanted. walmart would have to change -- >> where would she get this? >> walmart would know if it s l sells enough of that. >> maybe your wife who has the very high demand, she would

continue to do it. one of the criticisms of my proposal, a lot of the people the most unhealthy would continue eat like they do and other people would eat a lot less. my view like blood pressure, introduce the national blood pressure by five points, you have a huge occupational impact, even though people with high pressure, we have a huge population gain. same thing here. try to leave individual freedom as much as you can and overall population health improvement. we let those people care about it. overall, we have the national dietary gains. that's what public health is about trying to have a population effect on the society as a whole and leave people individually to have freedom. to get down to zero would be

ridiculous, that would be really bad. i can see it. guilty. >> i'm happy to here -- >> not steak. steak is not a junk food. >> i'm happy to hear you're trying to leave people individually some freedom. i'm sure people would be really satisfied by that. >> can i take the question? there is a woman all the way in the very back. does she still have a question? >> i do, thank you. going back to the discussion about unfair and deceptive advertising claims under the l n lantam act or consumer protection statutes, the court views the reasonable consumer standard whether advertising or label is likely to deceive a reasonable consumer. this whole conference seems to be focused on kids and special vulnerabilities of children and advertising targets to them. if the regional consumer standards is based on, i would imagine, an adult, do we need a

new legal framework or within that standard can we deal with segments of consumers? my second question is in terms of injury, if the parents are doing most of the purchasing, then how, from a legal standpoint, how are we going to protect children and their interests when they're not actually making a purchase and they're not necessarily decei deceived. >> these are both really good and challenging questions. on the first, in this area of the law and lots of other areas of the law, when we think about a reasonable person or reasonable consumer, the first thing we have to do is figure out what class we're pulling that reasonable person from. sometimes that's a very narrow class and sometimes very broad. all consumers or people in the market, sometimes we mean a reasonable 12-year-old or 13-year-old or 8-year-old. in different contexts and statutes and different cases i

can easily imagine, i think the folks have focused on a reasonable kid or reasonable teenager. i don't think that's an insurmountable problem. to the extent you're focused on one class of individual and the harm is done to another, obviously that's not going to work. with respect to the injury, a way of talking about this scenario you describe is one of, i guess third party interveners. a person who did something and the other person in the chain and the person who got injured. what we're asking about is what are the permissible causes. >> often in the law, if there's a 30 party intervene or that breaks the causation, then you're not responsibility. we do that sometimes. the question is when in the law

are we going to describe a wrong and an injury. as having been cause ally li la causally linked. i think people i talk to sometimes think it's a little crazy. that advertisine ining caused t injury, oh beatty or health effect. that's kind of right on the law. on the other hand if it didn't cause that conduct, they wouldn't spend billions of dollars of advertising. you're generated the exact kind of result intended to be generated and results in the exact predictable or harm and what do we do with that chain of causation. coincident mean to say it's easy, it's not, it's hard but not easy on the other side. >> can i add the fcc has a

history of marketing to children for products purchased by adu adults, wonder breads, cereal. and the adults are likely purchasing the products. i think we're out of time. thank you so much to our paneli panelists. c-span's "washington journal" live everyday with news and policy issues that impact you. coming up wednesday morning, congressman eric talks about the democrats next message and political messages and strategy and then congressman chris stewart on president-elect trump's emerging national security team and foreign policy challenges.

"new york" magazine select all senior editor, max reed, on his article, "fake news" and whether the internet is a reliable tool for furthering democracy. be sure to watch c-span's journal live on wednesday morning. join the discussion. also in the morning, we'll be live from the museum for a conference on foreign policy. we'll hear from chair thornberry and nebraska senator. watch live after 8:30 eastern. representative tom price named to be president-elect trump's pick, live at 3:00 p.m. eastern. next, wikimedia celebration at the third ever wikiconference for media and volunteers at the u.s., canada and mexico.

this is about an hour. >> all right. hi. with that introduction my name is kathryn merine maher. this is the organization that supports wikimedia projects and proud to work with many global organizations and partners that support the community of wi wikimedias and projects including many of you here today. i'm so excited to be leer for the third annual wikiconference in the united states and first ever wikiconference north america. amazing to see how our community continues to grow and reach beyond our own borders every single day. it is my first time at a wi

wikiconference in the united states. i also can't tell you how excited i am to be here in beautiful sunny san diego. it is my vote we do more votes here already. i want to thank our incredible conference organizers are putting together this event. there are more than 300 individuals from partner glam instituti institutions. for those newer, glam is one of my favorite acronyms in our movement, 30 different cultural institutions joining us today. i am so excited to be holding this event in beautiful balboa park and central library. yesterday, we had a culture crawl across the many institutions learning about the center for rich and varied institutions and spaces by cultural institutions. one of my own personal favorites, san diego is the center for craft beer. i had a chance to attend the san

diego public library for their annual fund-raiser. for those who have not been to san diego before this institution is in the 20 years in making and only opened their doors a few years back. thanks to san diegans to bring this remarkable institution to their community. i'm not going to dance for you but when i heard about the theme for this conference i might have done a little bit of dance. i was excited to learn we're going to be talking about inclusivity, charity building and knowledge. i will talk about why inclusi inclusivity is so important to fulfill our vision. before i do that i want to pause to acknowledge how far it is we have come. as you heard earlier today we're in an our 15th year. happy birthday to an incredible idea. wikipedia started years ago as a

small driven website. it is so much more. it is used by millions of people everyday, nearly half a billion every month. we are on every continent. i want to give a shoutout to the women's scientists event happening earlier this year. we speak hundreds of launches and speak to dozens of backgrounds and one of the scientific institution is around the world. we're so snl to the way knowledge is created and shared today i don't think it's stretch to say we have honestly changed the world. but we're not perfect. that's part of what makes us us. our vision is a world in which every single human can freely share in the sum of all knowledge. we don't just promise inclusivity with that statement,

it's had the heart of what we do, for all for all knowledge. for my beliefs, inclusivity is not just an aspiration, a necessity. to welcome all people. we need the representation of your voices and our shared voices so together we can create the sum greater than the sum of all our parts. we know we have further to go to achieve that. never mind all the world's knowledge. wikipedia alone is barely fin h finished. we have just gotten started. only 226,706 of the more than 1 million 283, 736 biographies are about women. about 16%. in 2012, the oxford internet institute did an evaluation and found more than half the articles were about places, events and people that cover only about 2 1/2% of the world's

land area. woman 2 1/2% of the world's geotagged areas are about africa despite the fact it is home to twenty% of the world's population. we have a ways to go. this is just inside the encyclopedia. free knowledge takes the form of images and data and original sources and language and so many other forums represented across the wikipedia projects. we need inclusivitity because that this is way we will achieve our mission. we must open ourselves up to be the thing we had promised to ourselves. >> what does this inclusivity look like? >> like the people and the world around us, we know that. how do we do it and bring all those voices in? i believe we do it with intention by embracing potential of what our movement can be.

as i mentioned earlier, we started simple idea for the website open for any to contribute freely. this remarkable movement grew up around that idea. without any particular plan we grew into a constellation of activity and organizations. and the knowledge proved to have a gravity of its own pulling brilliant minds and institutions as an orb bid. i believe we are and there are so many things we can do to become what we want to be. i challenge us to embrace this idea of a movement in its inclusivity and power and also messiness and po potential. movements are things that affect social change. they work together, plan together, align together around their core values. so do we.

for many people, social change is what we do. we drive change towards greater openness and greater sharing, richer commons and -- more knowledge available to more people. at their best, movements are organized to take advantage of their power and also organized to directly confront where they have weaknesses. as we look around today we see diversity of voices and partners that join us everyday. we heard earlier today we've gone from a place of wondering how we relate to libraries to feeling how libraries are powerful in this movement and mission we have. while we left a pretty big mark on the world of free knowledge we have so much more to go and change to make. to achieve what we want to achieve i believe we have to do it without bringing attention to our knowledge and how to get there and intentional thing.

in many ways we're already on our way, communities are doing great things to our potential including inclusivity where all the world's voices can be represented. you heard about afr, or-crowd. >> whoo! >> afro-crowd aims to -- whew! absolutely. you deserve all of the applause. they aim to increase the number of people of african descent who actively take part in the proje projects. >> through monthly telethons they have added to the wikipedia proje projects. and wikimedia in mexico, also, yes. whoo! >> these are aimed at bringing women together to edit wikipedia articles related to women and

their work. men are not invited to these. that creates a safe space and welcoming a space for women to participate. more than 200 women took place in 900 edit-a-thons in a year with a model replicated in spain, ecuador and other south american countries. when we have great inclusive ideas we see they spread. finally, i want to recognize in wikipedia canada the -- sorry -- i'm sorry, my apology ph phosmangling that. knowledge, culture and launch in the project that launched earlier this year the first in dan that aims to improve content about the first nation on wikipedia and comments about knowledge, culture and language of that community and great

nation. these projects offer leading examples how the community is working to fill the gaps and movements and challenges head on. we need to secelebrate these efforts and projects and groups and what they have done and countless other individuals for affecting real change and impact in feeling these gaps and knowledge. in the true wikipedia spirit we know there is more to do and to be done. how do we build for change? not easy and probably trial and error involved. the first thing is our intention, to letting people know we want them to join our communities, we have to be clear how to welcome them and engage them and makes space for them. this means we need to commit to and abide by safe spaces for our

technical communities and clarifying our values so they're not just open and diverse but help us make decisions what culture we want to have as a community. open spaces and inclusion starts with language and how we communicate with one another not just in terms of language to language but individual to individual, how we share and receive. we need to practice inclusivity and identify the people we need to work with and talk to them and listen to why they're not working with us yet. this is really important. not just asking people to join us, understand the structural barri barriers, social, economic or otherwise why they are not participating in our movement. we need to understand what their objections and challenges are and reflect on them to think how we might evolve to bring in more

voilds and become a more welc e welcoming and more inclusive space. take part in conversations and encourage others to do that as well. part of having these conversations and truly listening was a really important moment talking to our colleagues working to increase the participation of wikimedia editors. we understand how the way we were measuring things might have been alienating them. they felt we were being blockers and actually absorbing and making change we were able to create a better relationship and hopefully grow that community. we actually need to invest and diverse in the communities we want to have. we have to resource it. they don't happen because we want them to, we go out and make

a commitment. the wickimedia foundation, we are investing in this explicitly. part of the model are the grants. they set asii siside half a mil dollars for increasing diversity in content and tools and supp t supporting healthy community culture. we kind of used to do this thing and talked about welcoming women and people of different cultures and communities. we have staff for these communities and biggest and resources to make it grow. it's not just saying it, actively going out and going. we're working how to eliminate harassment and create a heal healthier culture and eliminate toxic behavior when they see it. our annual inspired grant making

campaign is to resource ideas of harassment in the wikipedia process and are identifying and supporting community members who may be our leaders. and spread the word about the resources we have that will help communities grow. we know we need more voices and want a more advanced community. and what is the next movement together. you knew you weren't going to get out of here without me bringing up strategy in some way. i want to make a request for all of us sitting here in this room, over the next six months we are hoping to have a conversation about the future of our movement. as i said at the beginning, an incredible initiative and movement and incredible for people for 15 years now.

we have achieved a tremendous amount. one of the things i think i'm hearing as i go around and talk to people, we have achieved all of this and have this incredible momentum and resources and positioned in away we have never been positioned before in, the imperative to bring people into our movement to make it the thing we want to be. how do we go about doing this or gets us in the same direction together? or bring our unique capacity and skills to the places we work. i hear that, i think, what do we want to do as a movement, next strategic thing to take on or mountain we want to climb. we have much more to do. not saying taking out the

encyclopedia or commons along those lines. what are the next milestones and how to resource and structure ourselves to do it and support the individuals in this room and elsewhere who will make this change possible. we will have that conversation over the next six months i hope and i invite you all to participate in it. in january 2017, we will be k k kicking off a strategic consultation. not -- we will be asking many of you exactly how that conversation should happen, what it should look like and how you would want to participate and thinking about what is it that we want at the end of that because we really do want to make sure it is about creating a space every voice matters and every person can share their perspective on the future of our movement can be. i hope with your participation

inclusivity will be at the top of this conversation but i know there are many other subjects we want to take on as well. i will ask you to add a page to your watchlist. i will ask you to read more. there is a page up on metathat talks about what we want to do in terms of the strategy consultation and also has a talk page. i encourage you to leave thoughts there but i also encourage you to come tomorrow to a session at 5:00 i want to hear from you what is the best way for you to participate in a conversation about our future. what are your hopes for that conversation? what are your fears for that conversation? how can we make sure that conversation gets to place we all feel it is the place we want to go, that your voices have been heard, that the important voices who are not already in this conversation have space to join. 5:00 tomorrow. i believe the details are on the followed. thank you. that's it.

i will leave it there on the strategy consultation. the fun is about to begin. we are going to have an incredible few days today and tomorrow talking about inclusivitity and where we want go as a movement and in the world. i am so excited we're in san diego and this is wikiconference north america with the participation and diversity that means. i cannot wait to get started. thank you so much and have a -- [ applause ] >> -- good day! >> my name is andrew linh from wikipedia. a lot of you may know me. i teach wikipedia. what we had inclusivity as a

theme of this conference it was such a great theme to work with because part of inclusivity is to include people from all walks of life to help enhance, correct and extend the historical record. that's pretty much what wikipedia does allowing any to edit any page at any time. we really wanted to meaningfully engage on this theme especially on indigenous people's weekend in southern california. i have written a book called "the wikipedia revolution" but i think the true revolution of wikipedia is allowing more than just the win others to write the history books. why is that important? you think of education, what do you think about, k-12, curricula and silyllabus and diplomas. if you think about this, think how much of our learning happens informally outside of the classroom, especially for the rest of your life.

this life long learning depends on museums, and wikipedia is part of that mix. it has disrupted the ecosystem with great side effects. this type of freely distributed life long learning on line and through wikipedia was the innovation of the enlightenment, journals, encyclopediaencyclope challenged the established authority of the church and monarchy and you had scientific exploration and people creating content outside of those two polls of authority. but the problem with this is as the authority devolved out of the church and of the monarchy, the viewpoint of the enlightenment was still very much a western perspective, right. so the term today encyclopediaic museum has been up for debate.

some see it to imperial colonial outlook and method for western museums to display artifacts. it's against this context that a few wave of museums have opened up, especially in washington, d.c. where we do a lot of our editing. so the smith sewn yam national museum was one of the real hallmarks of this in d.c. the newly opened national museum of african-american history and culture, sherry is back there somewhere, sherry myself and jim hayes stood in line for the first public day and had it in line at 5:00 a.m. in the morning. . yes, they thought we were nuts when we were doing that. so we've had several american india to backtrack and analyze

articles, trail of tears, thanksgiving and i'm sure we were telling about the gold rush, something you wouldn't think had implications for native americans. and what was fascinating about that, they worked with wikipedia editors and my students very early on, three years before they were going to do their permanent exhibit they contacted us to to backtrack and look at the wikipedia content for these seven episodes that they were going to have an exhibit on, it's not reacting, it was being sought by museums. we asked nags mall museum, who should we have, they pointed to two folks, michael connolly and we're happy to have them as our speakers here at the conference. when we mentioned we were working with them so one of the

interesting things when were talking to stan and michael, they mentioned they were working with the museum of man just by great coincidence we had this great park friday. yesterday i had a great conversation with the ceo of the museum, museum of man michael talking about the new orientation that they're trying to take, the same type of thing decolonizing the stan and michael are part of that effort. they've been working on a new exhibit astronomy and we had some folks here work on that article yesterday. ivan and some other folks, they've worked on that article and looked at the exhibit and improved the article based on what they found out, things are coming full circle in terms of our speakers and what our editors have been doing with the content they've been contributing to that museum.

innovative museums are trying to break out of the pattern are breaking out and de -- it's against this backdrop that i'm happy to introduce our speaker for today, stan rodriguez the navy veteran and inspired musical can rattler, devowed educator and student of native culture. i heard he had some great treats for us in that area. he was named the 2015 american indian heritage local hero by the pbs affiliate here in san diego. stan has touched the lives for so many of us in his love of teaching to all of us, the culture through his language, bird singing, shelter building and tool making and stanley appears in the documentary called pbs presents first people. he felt teaching rolls and native communities, he is a member of the and of the e pine

nation which aims to improve lives through economic development and cultural preservation. he sits on the board to strengthen language and cultural revitalization known as the advocates for indigenous language survival. he's also a board member of the community college, a school with a special focus on history and culture, but also provides computer courses, as well. the colleges open to native and nonnative students and it's my pleasure to introduce stan rodriguez to talk to us today. [ applause ]

[ speaking foreign language ] i want to welcome all of you here to the land of our people, the land of our people, now, before we start i want to say it touched my heart what you said. when we talk about inclusiveness, i heard other

people speak talking about the san diego public library and wikipedia. for our people we have a saying that when an elder passes away. we come together to share this, our knowledge. this is what we do for our people, for all the people so that we gain more how many of you like to eat, okay. when i can't see me eating potato salad for the rest of my

life. that's it. there's got to be more. that's what all of us bring here together. we bring that knowledge. we bring these things. and inclusive, to me, i won't even say inclusive. i will say to celebrate, to celebrate the diversity and all the knowledge that we have. now, katherine, come to me. . watch this. [ laughter ] i wampt to ask all of you, how many of you are in the witness

protection program. this is -- i'm going to take this to my professor, any way, thank you. so any way, what we're going to be talking about today is a land, my people, and one of the things about our people, is, well, first of all, how many have you ever heard of our people. okay you guys are pretty educated, about half of you. the other half of you never heard about us. let me ask you this, how many of you speak any of the language. i want all of you to look at me, how many of you have ever heard of the name tewana. what does it mean? just say it, man? it means south -- that's one

interpretation. . south of the border, okay. actually, it's a corruption of a word, it means, by the ocean. the spanish, they changed it around, how many have you ever heard of la jolla, what does la jolla mean, the jewel, that is a corruption of a word, which means the place of the caves. how many have you have ever heard of palomar mountain, the observe toir, what does that mean? you're not even trying any more. it means to win with arrows. how many have you have ever heard of takati. it's another corruption of a

wor word. any of you ever been to the border, okay. it means weed, this not this kind of weed, but the other kind of weed that grows. so ladies and gentlemen, do wikipedia, you've heard how to speak it, are you good? all right. okay. [ applause ] and again we want to welcome you here to this land, the land of our people, the land. and i wanted to to say our tribe is on both sides of the border on this side. any of you ever been to bah ha, a few of you have been there, the rest of you, are you from out of town. watch this, man.

it's a beautiful place, a lot of history. our people, we have had to endure three waves of encroachment, the spanish wave which happened in -- september 28, 1542 with a lot of people read that indians of california we had missions and we loved it. we didn't. and we were peaceful, no we weren't and we just disappeared, no we're still here. and we've been conquered, no we haven't. we'll be talking about that

today. then the mexican era, we'll be talking about that, and this present era and the things that we've had to endure and we're still continuing to, how would you say, we continue to survive. we continue to live. well, i've got to operate this, all right. it means a lochk time ago before contact, our people, we say we've been here since the beginning of time, however archeologists anthropologyists they say something different. i know those guys and they come to visit us, too. they say they've been here prior to that, you know, if you go into the desert.

>> and -- this is the territory, you say it goes on both sides. how many have you ever worked with native american people. and where is your family and

where you are. and and guess what, if you're out there, you're my relative. and that's how you find out if you're doing to possibly date somebody. it's a complicated system and and let's say here.

and going through territory. and comes into my tore toir. if you come over to try to and and we're a people and we have all those different topography. coming from the mountains and together they would and we had

no agri cultural and and because of the desert group along with it. on the trail and have you been on i-5, another trail and corys -- quarrys out in different things that we would gather like red oak or the paint that would be used for