merida this appeal is about whether the use of the terminal light on the bud light lima reader products can plausibly be misleading the district court improperly found on the pleadings and without any evidence that no reasonable consumer could be deceived by the term light when the maker does not make a specific full calorie version of the product to which it can be reasonably compared to that so that's actually an interesting question here as to what is the comparative product because as you've just shown us and as we all have known from the record what's on the box the cart is a picture of what looks like a margarita and it's all about give your comparative hypothetical margarita involving the full strength bud which isn't made but you're just you're just being advised this is made with bud light rather than bud well the reason why you can actually judge you should address judge but it's a margarita with a twist whatever that means this is a margarita isn't this a mop everett's this isn't there's no this is a malt beverage rect but in terms of what a reasonable consumer expects in terms of calorie content which is your whole claim here it seems to me that the label is urging you to compare of this if it's urging you to do anything with a margarita i guess the question is whether that is the only plausible interpretation of what you're seeing i think that's that's a plausible argument that could be made but equally plausible and based on the fact that that bud light has it has an actual connotation it has a meaning and has a bush has recognized that and they marketed this product as being bud light as as we noted in the complaint specifically because the popularity of the bud light brand do you think bud light is the comparison but i think there's budweiser right there's bud light there's bud light line who new there's bud light lima rida and there's to splash yes five and this box that we're all looking at says bud light lime lima read a margarita with a twist and it's not a margarita it's beer right that's betts my understanding yes and it's a certain flavor of beer it's a margarita flavored beer and i just get a headache thinking about it so let's just focus on but it says bud light line and his bud light lime and ingredient to bud light lima rita is it it's a has the bud light lime label very prominently on the box set but so it is but like i go to the store and buy bud light line that's another product right that's a different product yes why isn't the comparison but lime it could be it could be potentially bud light line but this bud light has it has their own label and then they make a product called buy light lime as well does and now they're and now they're making a another product called bud light line merida and they use the same bud light moniker on all of that and the reason they use the same bud light moniker is that had that has meaning to people and the meaning it has to people as we plug in the complaint which we argue was a plausible interpretation of that label was that it was a product that was light in some way and  some way we mean that lower the lower version then something well but kind of south just finished this a bud light line a rida is between twenty four and twenty seven calories per ounce right i think that's correct ok and whether comparing it to bud bud light or bud light lime all of those have between nine point one seven and twelve point zero eight calories per this has a lot more calories per ounce whether whether the comparison is bud but lighter but  what a regular margarita made with alcohol in non beer related actual margarita this has about half the calories the difference is that that's you know that's just a  margarita it's not a a like product per se then we've sort of gotten lost from judge by this question which i think is potentially helpful one which is is the plausibility of how the labeling is interpreted and again we played and we believe it's plausible that someone would it would see the bud light lime label and interpret that as being a light beverage because  has as the district court recognized light has meaning like means lower that got you i think you'd be a much much stronger ground judge graber suggests if there was no bad light in here but you haven't alleged that have you i don't know that i guess i don't understand why that would be the case your honor well if it if it says bud light on it then it's you assume that it's got some kind of that it has some kind of a bud light product which is different from a budweiser product level product i understand that outhouse or bush is the is the is the parent company here but you would expect that it would have some kind of life it doesn't have bud light and you've got a i mean i think you've got a more serious mislabeling problem well i think that the issue of whether the the beverage is light in and of itself and the issue of whether it has bud light and it are not necessarily mutually exclusive i think it can have bud light in it and still be misleading to the extent that people are interpret it plausibly as being a beverage that is light in some way that is is a beverage that is light lighter than some counterpart beverage and the problem here is that there is no counterpart that's what we're struggling with that one counterpart marriage i guess is the splash which isn't talked about much which is sort of a lower calorie version of this as i take it but that's why i was asking you about whether that label points you to compare it to an actual margarita even though this is beer it's like if you like margarita's this is a lower calorie version of that have we were originally pled the largest possible class and determine depending on how the evidence comes out or not but we think the minimum class at a very minimum would be the purchasers of the box and there and the reason for that is that on the box there was no indication of any sort any sort of action or california consumer protection laws defendants must show that the conduct complained of is clearly permitted by legislation under self under the cell tech decision the scope of the law has been expanded somewhat under davis to include regulations so is this is california safe harbor provision the identical to a preemption argument is it just related to a preemption arguer greater than less them under under the vantine decision they the court determined that it was some it was equivalent in terms of the standard that should be used they said that if if if so if an agency action has the force of preemption it is sufficient to trigger the safe harbor doctrine of the castle and as i'm looking at twenty seven u s c two  five we have an unfair competition and unfair practices unfair competition sounds very much like the lawsuit that you've brought this and that's the title of this of this section is it is unlawful and then we go to eat we have a very very detailed  provisions dealing with labeling labeling and conformity with such regulations you can't have the section of the can the the consumer and then there's a whole bunch of details of that the treasury department has adopted regulations that provide for a certificate of label and a process for doing that and they have provided a remedy for third party folks like your plaintiffs who don't think that the label accurately represents what's in the if you take that remedy your honor we don't believe that it was a remedy in fact take the remedy we did not know we don't believe it was a remedy and the reason for that is that it only provided the only remedy that's available to third parties is that they may provide a comment to the p about whether or not they believe that the cola was issued now well it's more than that it's not this is not just simply a right to a right to participate but it looks like it's actually a right to petition and the people respond to the petition i don't think that it's clear that the t t p has any obligations to respond at all i think if they agree with vic it seems from the from the regulation i think it was thirteen point well this is this is thirteen point six two six two units when we wish to comment on an approved certificate of label approval so it's not not in process right it's not this is not like sort of a notice and comment where you get the right to come and participate in the rulemaking but that's exactly the problem right because before the before the certificate of label approval is approved there should be an opportunity for notice and comment rule making and that's the that's the necessity to provide the certificate a label prove it with the necessary force of law to trigger the safe harbor act in the first place the fact that they do only a almost a discretionary comment period only but with respect to the to the cole was what's important is that we look at the specific procedures and i'm sorry i want to follow up on judge grader's comments so is it is it clear that there is no right under the a challenge the t v decision not to not to take action there's no apparent recourse for someone who is there something that bars review now that i know not that i'm aware of ok so there so as far as you know than if you went to the t t p file is a third party comment in accordance with twenty twenty seven c f r thirteen sixty two and the t t p said everything's ok they're doing exactly what we told them they could do that you can't you couldn't take an appeal from that well i believe the a p a we believe that that would be certainly challengeable because the procedures that the t v has set up for the for the cole a process we don't believe conforms to the requirements of the a p a it doesn't conform with any of the formal requirements that are necessary for that would be a separate a p a challenge i'm actually i'm asking actually something very specific that is if you went into the t v and said bud and if t t p came back and said either one this is outside of our jurisdiction which i seem i think that would allow you to come back in and maybe under california or says no we don't think that appropriate action is required here we think that they're doing exactly we know exactly what they were doing and  it's not it's not deceptive then when you have an e p a remedy from that decision i think you would but the question is whether the specific question at issue is whether that certificate of label approval is sufficient to trigger the sa doctrine and the procedures that they have implemented for the approval process of that certificate of label approval do not comport with the requirements in von caning or numerous other decisions that have examined this issue also hofmann versus fifth generation and point and i'd like to start with a safe harbor if that's if that's what your point but it's by an express grant of congressional authority that the t t b has permitted the challenge conduct the celtics safe harbor applies on that basis what opposing counsel ignores is that it's not just the colas here it's t t p rule in two thousand and four and let me explain that that's critical because in hofmann and in then calling in those cases there wasn't an express agency ruling governing the conduct here we have that so that fits within then conic even if the court were to adopt the then top of the van twenty standard let me explain how we get there twenty seven u s c two or five is the labeling requirement as a matter of statute it says the regulations will be prescribed by the secretary of the treasury which the secretary has done twenty seven c f r section seven point t two a one and seven point two three eggs both require the brand name in this case but let want to be on the label it's required as a matter of regulation safe harbor protection in addition sections seven point two three f a in which is called misleading brand names talks about the appropriate tb officer making findings about those brand names so what you have is a statute the secretary of treasury probably going to regulations and those regulations expressly say that what the t t c says goes and he has said it is not and i can explain that and a on the really just before we get to that the ruling ruling promises a future will making and did that rule making ever take place that rule making did not take place or are bad mattress that question first and then come fact section two thousand and four dash one express lee says that if you if you would do not comply with that rule by september one two thousand and four cont'd to be take the position that you violated the statute and so that is still the law of the land your honor and just because there is no additional rulemaking does not mean that that rule was not made by the expressed grant of congressional authority because it the enforcement provision in two thousand and four dash one expressly ties it back to section two will fall ok now to my question frequently asked question what about all beverage cases cartons and carriers and then there's an answer to the question there's no requirement if you put it basically abbreviated if you put it on the cans you don't need to put it on a card for it but that's frequently ask questions so it's not part of t v ruling two thousand and four so what status does that frequently asked question response it should have the same status as the ruling itself and i and i invite the court to look at the website w w w dot t t v dot org dot gov slash rulings when you go on the website and you look at the rulings issued in two thousand and four there's only one the one we're talking about right next to that it this it's right on the same line or it's in the same place but that why is that mean that it has it almost invites you to think it has lesser or different status because it's not the ruling i would i would respectfully disagree with that your honor because if you look if you go on that website you look the ruling was issued in ape on april seventh of two thousand and four the q and a was issued on april seventeenth two thousand and four they were issued at the same time expressively because the t t be good but really it would have been your case would've been a whole lot stronger though if they had put it in the ruling your honor i granted and in terms of if we you know if we ever got into a question as to whether we had to chevron deference or our deference you're down the ladder it was our case what even stronger had it been in the ruling i agree but the only express guidance from the agency that has exclusive jurisdiction to govern this industry is in that website posting nowhere else in the ruling would say what i would come back to is is that the the rule making by the t t p is from an expressed statutory grant and even you know and we sort of get into the issue of whether the preemption standard is the proper standard for force of law that comes from the it is completely unclear whether the california supreme court would adopt of ancona in the preemption standard there's nothing in cell tech that says that but we don't really have to get into that here because all of the power that the t t p uses here to bless the activity taken by enters a bush is found in two thousand and four deaf one and the addendum so there's not a debate about inform ality and formality and in fact once you get past the ruling and they and the f q and you get to the colas the cases that appellant cite with respect to dismissing the cole is as binding authority they turn on whether or not the court is satisfied that those court had addressed the issue whether the call is addressed whatever issue was was in the case so in the handmade cases hofmann says the calls are not enough because unclear to us whether the t t be addressed the word handmade one blessing  label we don't have that problem here we know the t t be blessed these labels for two reasons one they said so in the ruling two thousand and four that's one number two when you look at the coals themselves granting approval to these labels it express references not ruling two thousand and four dash one so you have expressed statutory authority you have the regulation you have the t t b and on top of the t t v you have the whole was that expressly referenced two thousand  four dash one i'm not sure what other situation you could invent that has that more leap more deserves the safe known for being less caloric regular budweiser so i think i think you know so there is a reference that would cause a reasonable person to think that somewhere in here or there might be on a relative basis that you can define the light and so the question is plenty of argument is that this going to i'm a read a product that duff zero calorie counterpart to compare this to is a regular budweiser as if i were going to go to the fridge and say matter if it's a bud bud light or bud light lime they'll have a lot less calories that's his argument i know that your honor but it's a false comparison and the reason is no reasonable consumer would believe that this product would be comparable to a beer of the comparative product of this would be this exact product made with budweiser instead of what like by the line that the copper product it's you start with the ingredients of the bud light lime in the mix in the combination of that and then you take the same mix and you make it with budweiser instead that's the comparable product what they want you to believe your honor is a line a read a product a margarita beverage can be compared to a regular old budweiser that's implausible on its face somebody said he said he compared to again he said you could compare it that the full calorie compliment product to islamorada would be a regular or budweiser if if if someone would say that again you keep saying that but it really it's not helpful because it's not his argument well your honor but he  promised you would get back to my question it does appear actually malt beverage appears on the label but you have to read the fine print you tell me you're going to explain to me why i don't have to read the fine well because it doesn't say beer it says malt beverage that's a big the state you are a beer  i don't i don't know the answer to that question or are you going to tell me why it is when i look at this label with the green beverage and the margarita glass and i thank you and it says margarita with a twist on it  yes that i mean once once i took this to be that somebody would walk in and look at this box and realize they were buying a beer after listening to some of judge papers questions i thought maybe i wouldn't maybe i think this thing is a is it is it is a margarita it require the branding to be on it and it's part of the ingredients i'm just trying to give you an opportunity to answer my question if you want to i'm trying as a one more time i'm desperately trying to answer a question or i question yes isn't it correct that i would need to read the fine print on this box to figure out that this thing's a beer and you said that it is a beer is not a beer i'm sorry that it's a beer rather than tequila and you said no what it does say bud light lime on it and so that's an ingredient the comparison that planets are trying to make here is as if you took a tab of low fat butter and just left it on a plate and then you took the same type of love that butter and then you added all your cookie mix to it and you made this big chocolate chip cookie and  butter so what they're saying is is that this big huge cookie should have the exact same amount of calories as the low temperature butter because it's because that's an intriguing in here and then you take this group the pookie and the butter and you compare it to the f full calorie butter that's ridiculous on its face i think it would be so so you're getting to actually to my the question we're almost out of time if i if i if i look at the label on one of these individual beverages it says that the out of the cookie dough there's a lot walks up in the grocery store to buy our i don't know where you buy this but you know see that it's got the cookie dough in it well two things are are you get back to whether the reasonable consumer would believe that the comparable product is a regular budweiser as opposed to the same nobody needs to answer this but it's always baffled me why the rule is that the carton doesn't have to contain the same information that the individual packages do that would solve all these problems but that is where it you first to judge gave us a point about whether if you're going to use a different margarita brand as the comparable product on s c r eleven we noted about three other comparable products and you can see that the calories per read actually contains more calories than two thirds of the compromise margarita drinks even so if we took an average analysis of all the margarita's it would it would still be much higher than that so it's almost as if any any comparable product that you used to did not have the force of law first and noted the equivocal language in the ruling itself which said that this is this is only policy guidance this is pending rule making and so they didn't even take that into consideration as having the force of law and in addition to that the only if the terms of the p two thousand and four one itself were equivocal they only said that the use of the term light tends not to be misleading i didn't say that it was never misleading as long as there was a statement of average analysis on the back and in addition to that there was no there was no formality associated with that order to suggest in any way that that that that should be accorded deference chevron deference and be sufficient to trigger the safe harbor act then the idea that it was simply the delegation from the f a a to the secretary of treasury to the t t b and that therefore the t t p can can essentially do whatever it wants is not accurate and hoffman versus fifth generation dealt with that it said that the error in the analysis was that that's all the court looked at they didn't look specifically as to what the t t p was doing and what procedures it utilized in order to determine whether those procedures and the result of those procedures which was the certificate of live