law and the question of course is the retroactivity of the two thousand and sixteen amendments to the u c l provision alone made in america made in a country of origin representations and so it involves more than anything else characterization if you characterize as the district court did the amendment as a repeal of a right that was a pure statutory right if you if you characterize this as a repeal repeal as the district court did and i'm sorry let me put this a bit more if you characterize it as a repeal then you naturally go down the progression of that line of cases that talk about aloes on the other hand if you characterize this as an amendment as a change in the law then you're talking about the other group of cases and that's got i was looking at the two stacks over the last few days there about the same size then you're looking at those cases that say that you presume that a law applies prospectively only and that there is a presumption against retroactivity and so which set of cases should this quarter plot and i think in looking at that and i think the i think the panel has to has to think about which which land you're going to go down because if the district court in this case and in another district court in california that have ruled the same way on the statute if once you start down the repeal path then then inevitably you're going to reach that conclusion but i think those cases the district court in this case and those other cases that have ruled that the that the change in the law in two thousand and sixteen constituted a legislative repeal i think they which intent he will hear right well the original statute was an act in nineteen sixty one and so the subsequent attempts there were some subsequent attempts to change it and as the the sponsor of the bill that made the twenty sixteen amendment said the sponsor of that bill said no well in one thousand nine hundred eighty one when the statute was first passed the globalization of the world economy was nascent it was not really had hadn't gotten traction yet you didn't really see foreign ingredients in american goods now with you know my i phone here being made in china and we the entire globalization the california legislature made a decision that times have changed in fact they started looking at that in two thousand and twelve they considered a similar amendment two thousand and twelve they decided now we're not going to do it again do it yet they did the same thing in twenty thirteen and then did the same thing  no longer a strict liability statute that you are allowed to have between five and ten percent of foreign source ingredients in any product and still be able to label it is made in u which is a what only one of the statute says issue in this case if this between five and ten percent then you have to show them that's where you put a burden on the defendant to show that you can't really get this ingredient anywhere else but the question is would know i'm sorry we went from strict liability right so yet anything at all in there that was foreign sourced and you put a made in the usa label on it that's it we're done right and in two thousand and sixteen with the amendment you could have up to five percent and stick a made in the usa label on there and have no problem between five and ten percent as long as you could show that the cost of a plant doesn't grow in the united states and can't grow in the united states you can put a made in the usa label and there only statute issue here because we also have claims here under the c l r i would also disagree with that it's where we get to the safe harbor attack that's right but i also disagree with your characterization of the amended statute as expressly permitting it all it says is that you can do it and this section of the statute want to plot it does it say that for all purposes under california law that we hear about a sad that which is what you would have to have to have a safe harbor argument which not be liable if you meet these exceptions that's what your honor i believe what it says is that this section will not apply you california cases they talked about there you talked about a complete reversal in legislative philosophy and things like that the later cases same to sort of assume that almost any change would be would constitute a repeal and that's why i want to i want to then later there was a i believe was a two thousand and three or two thousand and four amendment that said well you know never mind the rules of evidence will simply apply and specifically the rule that says if you can show some sort of legal legal illegality in what you've done it constitutes negligence percent and so the court there said so before the amendment occur those there was an accident and the gallows guy was injured he sued and then the question then later the was amended so that the rule was that you should have admitted these the trial court said no i'm not going to let those in i'm not going to let them the standards of callow shit in to show negligence percent and the california supreme court reversed that now let's think about that for just a minute if you talk about if you are under the impression that any change in the world can constitute a legislative repeal well if they had analyzed that case well in that case obviously being able to put these having to have not if you're a defendant and you don't have to defend against these callow should standards you stand a much better kick chance in front of a jury on a personal injury climb but as you would characterize it if you were looking at it and assuming this was a legislative repeal well that appears that right got taken away from the defendants it was it was taken away from them and now they've got to defend cases under a very much more onerous legal standard where the callous regulations are in there so if you analyze that as a repeal will yes there was a right it was a purely spatula tory right because that right that not being seventy one statute that said you cannot have you cannot have those sorts of standards in evidence that was against the common law it was a purely statutory right it was taken away by the legislature in the and subsequent amendment and so the california supreme court then our position is that cases like that represent the distinction and that's the day more question now the other many of the other cases me being this is a i'm not in school district case where there was a change in legislative philosophy they said as a matter of our full legislative philosophy that we no longer will all the opprobrium and bad sanctions to attach to somebody having a minor pot possession charge those a teacher that was fired for pot possession i mean he was arrested for papa session he was a teacher the school district fired him and then while his case was pending the legislature said well you know we don't have those attitudes about marijuana anymore and so we're going to pass a statute that makes people like school districts not be able to have the right to terminate you just for a minor proposition charge and the fourth district court of appeals in california said you know what that worked a legislative repeal and he gets he gets to go back even though that statute was passed way after he was terminated that is an example of a i think that it is the language from the separate case that the district court search are using to support the legislative repeal orders that they're entering if you look at the facts of the case and in that case there was a statewide statute that said you can't grow or maintain trees that were going to block out you know under the solar shade act because it contained a specific provision that said if you if a local government wants to totally opt itself out of liability for that it can do so and the county did that and after it did that in the question was well was that a legislative repeal well with regard to trying to sue county it certainly was it was the county's complete change in philosophy that it did not no longer wanted to be liable for keeping trees growing this going to block out sun from the people solar panels and so i think that in that circumstance as compared to here so why isn't this a change in this is not a change in philosophy this is a change in philosophy to me is where you say you know what we used to have all these bad attitudes about pot but you know we're more you know we're a little bit more progressive now we don't have those attitudes versus what you'd had in order to have the same sort of change in philosophy you would have to say well you know what we should have gone all the way back to nineteen sixty one and we would have disagreed with that legislature in one nine hundred sixty one would have said well you should have had that de minimus you know sort of safe harbor thing way back then they didn't do that the result didn't come about as a result of a change in philosophy it came about as a as a result of the change in the world in the globalization of the world economy and so it wasn't a change in philosophy the philosophy still there we still don't think you should be making made in the usa at assertions and advertisements that are not true but they've recognized that it's harder starting going forward we recognize now that it's harder to comply with that with the globalization made please the court frank roth rock for defendant in napoli tyson and like to share my time with counts for big cards trying to move quickly i think the issue here at least as to the u cause of action is which version of business and professions code section seventeen five thirty three point seven applies plaintiffs don't claim a violation of the current version that took effect january one twenty sixteen they had a chance to amanda allege of violation of the current version they didn't take that opportunity so the issue is does the statutory appeal rule apply and if not why shouldn't  no i wouldn't agree with that your honor for this reason whether it's an amendment or whether it's just an abrogation of the statute replacement with a new statute we would look to the substance not the for we have the chapman case cited in our brief involved in and then to the california constitution so you don't think it has to be of appeal no it substantively it's a repeal in the sense that the right to pursue a claim under the prior action no longer exists so manly a longer some people the action exists you can still sue if if something is alvan where the foreign source content is less than five percent or ten percent of the final whole salt value that right no longer exists and we have the text of the statute we can look to legislative history that plaintiff says cited but just starting with the stacks to the statute subdivision see now says that this provision quote sh obviously we have contacts other contacts you say you you would win even if it were i mean i don't think it matters whether it's an end or the whole statute is gone because the right to pursue an action under this provision under the u c l no longer exists the legislators made it clear just might have covered many amendments will they say it's not this is not an appeal to them and what happens then it has the same effect you look to the statute the controlling statute if you haven't ended the underlying statute you would look to the end ended statute which here that's been taken away as is here and the right to sue them so counsel lists the amendment can operate as a partial repeal is that your position and that's that's what happened and there's no savings clause in the amendment and there's no vested rights here because you don't get a vested right under a claim dependent on a statute until you have a final judgment what's your position with regard to how basically a repeal of the scope of the anti slap statute where you could actually bring an end to slap motion even for commercial speech so that would act as in effect  partial repeal if you will so i think it get a lines it's probably not the most analogous factually here but it's an example of it i mean i think this is it in the other way around i'm sorry if this is been the other way around and the statute had been amended to make it broader so that if there was a blanket prohibition then there would be a claim here i don't think so because then the rule of retroactivity would apply that i'm not aware of any case that's flipped the statutory repeal were around to say there's a statutory added or rule and in that that's an exception direct retroactivity i'm well the basic rule but i think counsel though that if it were flat right and now it went from there are these exemptions and now it's strict liability plaintiff wouldn't have a right under the under the statute no because you'd have this five to ten percent of foreign source to be greedy and so loud there wouldn't she would have had a cause of action and then she would but now she does she my guess is if the legislature flipped it around she would go out and buy some more pet food and we'd have a new law exactly and you know it would have established a cause of action that she wouldn't have had before well no because it might change the formula and she might you know and she might say but look i i stablished a statutory repeal rule and it's applied irrespective of whether it's an amendment or a new statute or you completely take away a statue and council isn't it because that if the california legislature imposes liability on a defendant you need to have notice of the liability and that's why it's not retroactive in that it's prospective it raise it would raise big due process issues virtually canned post facto it just one in one if i could just respond briefly to the philosophy the same philosophy argument of counsel i think we should be judged by the text of the statute but if you go to legislative history that the plaintiffs brought out and i would invite the court's attention it's to page nineteen of the excerpts of record which is a california senate report and it spells out the quote may be labeled made in usa in quote when you meet the five and ten percent requirements and it goes through the intent of this legislation to bring  california in line with the other forty nine states and with the f t c federal government standard so i think what that there is a change in philosophy here there was a reason why the legislature put in the five and ten percent exceptions and white call that we conduct or goods or that comply with those requirements out of the category of being on lawful under the statute  i'm very sure i don't think you are i said if you accept her claim social must at this stage right then the cans that she bought were in violation of california law at the time they were california law i'm just having trouble with a concept or so why the new legislation which talks about conduct in the future you know this is a law that gives no the so the future should whitewash  illegality in the past i suppose your are your honour's argument or position challenging and i'm asking a question because i want to sway me that you know this illegal conduct should be whitewashed at this point because the legislation changed the law for future because we're playing california law here in the california supreme court in a series of cases man and younger the marijuana cases and others have said that in this context the new statute applies it's called the statute under so you don't dispute that if what there was a girl playing this through your client was violating the law  repeal and certainly an amendment can be a repeal and in this case we have to focus on on the change the statute and what it was and plaintiff's counsel has use the phrase was it a substantial reversal of legislative policy and and in fact it is it took away a right that to be able to sue  legislative history and a recognition of a global economy if in fact this statute was amended because there's a recognition of the global economy then that is a change of philosophy the philosophy now is to bring the california statute more in line with the f t c the f t c standard we're governing made in america claims which is a virtually all or virtually all standard that applies so you know it's respectfully submitted that this is a substantial reversal of legislative policy and it's not it's not merely you know just attacked on an amendment to the statute is goes far broader than that i know you believe that i can  creep into domestic products we're going to need those american small change in policy was on appeal well i would disagree that it's a it is a small change in policy i would i would say it's a fairly substantial change in policy because we went from an absolute zero tolerance policy to something you know that's far broader than that and five percent or ten percent of a whole cell value of a product is certainly not insignificant ok go back to judge kozinski this question of if this had been the reverse if they had added this if they had taken taken away this de minimus exception and made it strict liability would that have been therefore retroactive under their reasoning and  of taking it away version editor than oh no it can't possibly ever repeal i would point you again to this reality case the school board case in this case an individual case this is the school board case where the bastow he was given something so again in order to determine whether there is a legislative repeal you have to look at whether it is in fact a change in policy so two more things in my if i could a one more thing if i could and that is that the district court cases in the district courts in these cases are applying this legislative repeal rule very broadly in live in a little gated case involving a statute ice ice changing the statute is going to affect somebody has rights it happens in every case if that if the reasoning of the district court is followed in this case then the legislative repeal rule is simply going to swallow the rule against  for the presumption the statutes are prospect of only thank you thank you