unjust enrichment claims against defendants hills and pets mark this case is about the defendants unfair and deceptive practices defendants manufacturer label and market prescription diet branded pet food to mitigate treat or prevent diseases and they sell these products to consumers pursuant to a self imposed prescription requirement in marketing labeling and selling prescription diet food dependents use terms and symbols such as prescription they do this in order to create the false impression in the minds of consumers that prescription pet food contains a drug or medicine this allows the defendants to salt prescription pad who at above market prices in comparison to doesn't contain any drugs yes when a marketer or a manufacturer of a product labels their product as intended for use to treat or prevent disease or mitigate or cure disease the f d a treats it as a drug even though selling products in violation of the drug and cosmetic act and they say that to you says if you are saying we recognize that you're doing this and we're going to allocate our unfortunate resources and we're going to tell you if you comply with all eleven factors in our in our after compliance policy guide which is attached to our complaint then we will be less likely to initiate enforcement action and all of that is the first factor which is what defendants rely on  permits them to sell my question really was antecedent to their you're not making a federal claim here that there's a violation of federal law you're making a claim under the prescription for that is deceptive or unfair and i don't know that the claim is possibly pleated in the first instance just before we even get to the state harper defense that's being offered here is that what the defendants did was we don't take issue with just the veterinarian authorization requirement we take issue and have pled that the defendants used the better the per script in requirement that they have imposed in conjunction with terms such as prescription diet our expert wired our executer medicine and perhaps mark's requirement that the plaintiffs and consumers obtain a prescription card with an r x number on there that they do all that in conjunction with the prescription requirement and the emissions of material fact and now that is what is deceptive to consumers because it leads consumers to believe that their pain more for a product that contains a and because of that they're supposed to get it approved by the f d a as a new animal drug and what the f d a does in the compliance policy guide is they say these manufacturers and marketers are not getting this drug what we consider drug because it is claimed to treat or prevent disease you're not getting that approved so the f d a has not evaluated the safety well under the i can interrupt again as i understand your claim it's not you're not statute which is the drug and cosmetic act so part of the unfair practices claim yes does rely on their feeling i'll get up to extent that the claim is based on that then you have a problem with the safe harbor because the f d a has promulgated this guiding saying we're going to prosecute you if you're if you're the compliance policy i in the complaint so the safe harbor exemption does not apply to your because we have alleged that conduct beyond  permitted by the f d a compliance policy guide is what our complaint is based on so we're not basing it solely on the sale or the restriction of the product to a veterinarian or those who are purchasing under the never said you can use in that compliance policy guidelines that those terms are x medicine or prescription are allowed if the f d a knew that veterinarians were using those terms they could have told marketers and manufacturers of those products in the compliance policy guy that they were permitted to use those terms but they didn't do that so this case is unlike the price case price versus philip morris where in that case the court said this is about the sale of a consumer product and the consent decrees in that case had specifically authorized the use of the terms low tar and nicotine in addition to like qualifying terms but what we have here is  nothing about what currency the manufacturers and marketers of these products are allowed to use when they're marketing the patent to consumers so our position is that the safe harbor exemption is not apply to branded and do not require a prescription the prescription diets greatest absolutes are substantially more expensive than the science diet branded pet foods the prescription diet pet foods are marketed to treat same or similar conditions as the non prescription pet food products and what our complaint is about is that even though these prescription products do not contain any drugs or medicine the defendants are charging substantially higher prices for them and requiring a prescription and using all of these terms and symbols which leads the consumer to believe that these products can challenge a drug or medicine and have been evaluated by the f d a for safety and efficacy when they have not isn't any requirement i think it's a deceptive practice to attach it to the product and require consumers to pay higher prices for it which means consumers to believe that it contains a drug or medicine that has been approved or evaluated by the f d a when it does not so it's all of these things in conjunction it's the prescription requirement the use of the terms and symbols and the higher prices which lead consumers to flee along with the  not have bought these products had they known if that and they would not have paid more for them had been known they were not subject to f d a approval and did not contain a drug or medicine and they bought these products for a number of years based on those representations and omissions of material fact paid a higher price for them over a number of years and that's a causal harm as a result of the omissions of material fact in the representations including the labels on the bag and passports requirement that you get a prescription card in there doesn't nation of a separate had they known that these patents did not contain a drug or medicine and were not up to a proof they would not have purchased these parts it would have worked that doesn't mean they would go treatment for their sick cats it's not as if they would t recommendation ignore it and just feed their dogs were cats whatever what they would have done is they are allegations say they wouldn't have bought this food had they known what they now know and that was all imprints from that fact is not what the district  found which is they could have just foregone treatment for their very very ill cats what they would have done and i think what is possibly inferred from those allegations is it would have worked with their vets to find another solution to find another drug tain a drug or medicine and they worked with their vats to come up with another solution for their cats illnesses so the proximate cause allegations that the district court had found it in our favor on that count actually and the defendant have raised that if you want to appeal that the proximate cause was not properly pled because our allegation suggests that they would have forgone treatment for their cats but i think a plausible inference from her allegations is that if they had known what they now know about these cat foods they would have talked to their rats about another solution well that was the point of my question about reliance the statute doesn't require reliance of the plaintiffs doesn't have pretend prove that but for these misrepresentation she would not have purchased the product all that needs to be pleaded and proved is that there were the misrepresentations they were  capable of deceiving and that the plaintiff got less than what was represented right and i think we have pled that and in pleading that we didn't get what we thought we were getting and we paid more for it during that two to three year period of time for each of the plaintiffs i see that i'm running low on time i'd like to reserve is required here there's not enough that there's are x and that authorization is acquired that's the whole point that you know the authorization is required that's what they're complaining about and given that they themselves read the paragraph sixty two and sixty seven of their own complaint that they thought not the veterinary recommendation to go get this product but it what was said on the label to do that they need to tell a much more detailed story than the complaint they need to have specific facts alleging for example did the veterinarian explain to them what the product was the veterinarian tell them the medicine of the product but i'm prescribing it because your dog needs this particular of formula of food in order to deal with a very sick illness problems that the the cats rather because they can be misused by a consumer season on the shelf and see if the consumer were to see it on the shelf and see that it's you know for your own airy care let me misunderstand it so the manufacturers and the f d a say that it must be respect disagree with your characterization of their claim their claim is the whole problem they have is that the manufacturer will not allow consumer purchases product unless a veterinarian authorized the purchase in advance that's the complaint that's the problem here manufacturer does the wrong about that in the sense that the f d a affirmatively encourages but it's certainly true that when it says all rx prescription that's absolutely accurate you have to have veterinary approval in order to purchase the product nobody disputes that they would agree with that  practice of selling prescription diet of selling pet food with required veterinary offers that it was about selling pet food that was intended to treat diseases and the f recognized that historically that had been done exclusively to and through veterinarians the problem the c p a was addressing was a more recent phenomenon of direct to consumer sales and that's what the f d a was concerned with  misleading label that's the whole point of the c p g it's a level one guidance that binds employees they have to follow it unless there's some really good reason not to but more importantly it was promulgated after notice and comment it was designed explicitly to provide guidance to the industry so that the industry would understand that this longstanding practice remains a permissible in the view of the f d a so long as you sold the product through better names and require plead sufficiently plead under rule nine be allegations of fraud deception and causation you have to plead the context what were the other options available here the plaintiffs don't say a word about what other diet products were available what other combination of of exercise diet and actual medicine might have been available no discussion of alternatives that might have been available to them instead of these products to permit an inference that there was something out there that they could have purchased as an alternative to take care of their very sick pets and let's be very clear about one thing they don't allege anywhere that these products didn't work that these products didn't help solve or your medical conditions that their cats were suffering from the clean up and they are he told me that they overpaid which goes to the point that their claims about deception not as counsel suggested today the mere fact of selling something that hadn't been formally approved by the f d a they don't allege that the products were unsafe and that there are there are pets suffered from some problem because these products are on the market to the exact contrary they kept purchasing them the only  veterinarian recommended these products they don't plead what the veterinarian say they don't believe the existence of other products they could have turned to to avoid overpaying your honor none of that is in the complaint and that's exactly why rule ninety requires that's exactly what this court's cases other products so those are all construing the consumer product so i think that's maybe where there's a slight difference whether you call it reliance those cases when you look at if you look at all of their at the whole square holding in that case all there is that you have to show that you  my answer quite a mentor not i think there is and that's what the courts are saying when they say that there has to be the gag was also telling a supreme court said about our alliance requirement i think i think i think i think that you know without without reliance but i guess i don't think this disagreement and if your honor is right and i'm happy to concede after reviewing the case is to rhonda because as a matter here they're trying to plead it and what they don't plead for sure is that given the conversation that the recommendation of the veterinarian that the label is what caused the alliance or not the labels what caused them to make this purchase rather than the veterinarians recommendation that's their own allegation the veterinarian recommendation is why they went and got but you can get it without a prescription and you know the ones we're talking book yet that's what this is about it to be clear their own allegations again individually are not that they heard about this product and said i want this and they saw the label they saw an advertisement went to the doesn't mandate a prescription that's their complaint so therefore you have the didn't fulfill the noise from requiring veterinary authorization or at least from calling it a prescription in illinois but that would be directly contrary to the c p g the most essential factor of which is a veterinarian authorizations that's what they're trying to encourage their view would be if you try to get the regulatory benefit the f d a is trying to encourage to protect animals you're violating illinois law you can't get to the same time  regarded regarding how someone could purchase their product you're not responsible for the label not responsible for the label you don't control them imo do not control the way you're not answerable to the f d a for the lethal that's exactly right although the f d a in the c p g clearly understood that these products would be to the public which is why it wanted to have veterinary involvement and all pets marta's to saying to its consuming public if you want these products these are what required according to the manufacturer so you're just you're because you're in the chain of distribution that's exactly right you know a distributor of a product in a product liability is in the case that that's exactly right i think the only thing we haven't addressed is plaintiffs allege that because we have a section of the store that has these products that somehow that's a representation i would merely note that the rest of the store is available to the consumers as well and that if they wanted to do a comparison shop they could clearly do so there is no indication and in fact not in fact the case that if you go in the section of the store where there's these products that you somehow no longer be go to any other section of the store in other words i don't believe that the fact that there is a section of sort of these products prescription food would be in other words i don't think that if we don't do the labeling on the product and all that's being alleged is that there's a section of the store where product which require special mary involvement a veterinarian felt that they therefore have this guidance at the level of level of guidance within the authority of the agency which means complying with that fiber manufacturer and then by the retailer shouldn't fact be protected in other words the inferences are reasonable from this complaint how are i don't have a pet so i don't know but how are prescriptions for actual medicines for pets held i get prescriptions for actual medicines would used in conjunction with the prescription requirement on the label do deceive the consumer and they do convey that the medicine or a drug is the food that they're calling prescription diet  also mentioned that needs a plead context what other options were available and there was some discussion with you judge sykes about whether reliance was required we don't think it is but in any event we didn't we didn't are complaining that there  defend itself nonprescription products that are marketed to treat or prevent similar or the same conditions at significantly lower prices so i do think that we and we fled that we would not have bought these products had we known prescription diet on the label we pledged that they were required by pat smart to have teeny prescription card with an r x number in our it state and that's adjusted to them that what they were buying was similar to what you had mentioned before an actual drug just like if you were going to get a pill to feed your pet our clients thought when getting a dog food or cat food in this case called prescription diet the side are extra acquired are excluded medicine and this you are not allowed to purchase a prescription pad who would prompt pet smart without a prescription or without their specific prescription card so it's not over the counter if you go into pet smart you can take the science diet right off the off the shelf go up and stock out if you go to pet smart and you go to the prescription food section and you take the prescription diet cat food put it in your cart bring it to the front they don't let you buy it unless you're have a prescription and we played that we pledged that each of these plaintiffs had to get a prescription card and had to show that card each time they bought it at the touch mark i see them running out of time here the only other thing that i wanted to mention is that