ma'am please the court this case is about it consumes right or ability to seat in federal court about article three standing and in particular about the injury purchased supplements that contain illegal and banding greedy and that are not allowed pursuant to the f d a that those f d a requirements are incorporated into the florida illinois and new york consumer protection statutes under which plan a spring claims and the because of those products contain banned ingredients they are worthless the district court found that the plaintiffs failed to meet the injury in fact requirement for standing on the theory of economic harm that the plaintiffs seeking the entire purchase price was not  case which is a congressional statutory right case in which the allegation was that a credit card receipt was provided did not truncate the numbers as required by the fact  the case was initially dismissed for standing and came up on appeal and in that case this court said that the mayor basically the plaintiff having to keep up with the receipt and keep that receipt in his wallet and use that while it storage space was a concrete injury injury in fact it was sufficient for article three standing here we have something far greater i would submit we don't an economic injury can be sufficient i'm trying to find some support for your theory of the economic harm that the product was worthless because it contained an in not approved by the f d a and so that is the basis for your claim that you sustain an injury your client sustained an injury in fact yes you are what's the best it's that allegation was that the skin cream should not have been could not have been legally sold on the market and therefore the plaintiff should not have been able to buy the representation that it was legal to sell was false and the plaintiff thought recent what would happen if you had  a product that was approved so f d a is fine with it it's been sold as out on the market and the f d a learns through some studies that well there's just one and greeting when alan comfortable with we're we're not going to let you sell it anymore but the risks aren't so great that we're going to have you recall it or tell people you can't use this that we're just not going to let you sell it anymore would you still have an economic injury claim that would be a much closer call  i'm you wouldn't you wouldn't have an economic injury claim is my thinking because in that setting the f d a hasn't said you can't use this they've identified some risks that are on the cost benefit analysis enough not to let them keep selling it but if the f d a isn't saying stop using this how could anyone say there's an economic injury x is not worthless we know it's not worth what it would in your hypothetical it would not be worthless prior  the and i think the distinguishing factor there is there is no dispute that baby powder can legally be so you know no one's arguing that and the plaintiffs were are not able to say it's has to everybody so what's happening in those cases which spin out of mass toward context is certain players are saying i've been harmed by the baby potter by physical injury no one's able to say there's an economic injury divorce and physical injury here in this case france case the injury is the product should not be on the market at all it's a banned substance i mean this is public information so i don't know the answer what is the f d a saying about the n b a the f d a has issued warning letters which are which we allege in the complaint to other companies that have this particular stimulus dmn b a which is banned by the wanda which is the world anti doping agency and the u s dubbing agency and they've issued a warning letter saying  you cannot use these represent this is a dietary ingredient what's the harm that causes the m b a what is the harm that it causes if i take one of these dietary supplements myself what's going to happen to perform better what it doesn't have any benefits certainly certainly the science people think it has now if it's been around since the forty's because the reason that i'm asking the question is is this dietary supplement worthless if there are other consumers other than your clients who have no problem binah a supplement that contains the n b a so it would not be worthless to some people we might be worthless to your clients but it might not be worthless to me  im willing to incur the risks in order to enjoy the benefits the distinction is the product is being sold as if it's a legal drug illegally reading and it's not the representation contained label the implication is we can sell this and you can't understand them but what if i don't really have a problem with the fire and it's a banned substance in there i think then it then for me the product is not worthless it has economic value that to me would be a damages issue that movie fans could raise in response to our argument no we have an expert become four and say this is worthless and here's the damages are they could have an expert come out and say no as you just said it's not you would say this part of the price is attributable to the mis representation but that again is advantages now says that's not a standing issue we're talking about access to get through the gateway of the courthouse door to bring a can type of the time your clients bought this it was legal now it's never been legal but i think maybe i've got the facts wrong i thought this was something that was bought and then the f d a came out with no so they were selling it after the notice by the f that they were selling both before and after the f d a notices the relevant someone to our theory of the case because the way this works is if you have a new drug ingredient something it hasn't been used before prior to october hundred ninety four if it has not already been used in a food you cannot put it into a dietary supplement unless you give the f d a seventy five days notice and you provide a study showing this is safe in this case the allegation is that if there is didn't do any of that they never had the right to sell it eventually the f d a sent warning letters to some of the other companies who were selling products with d m d and so it's never been legal to sell in this country and are in our fury the case we accept your theory of economic harm why wouldn't this open the floodgates let's say the product was labeled as you know i'm a patriotic american and i only buy american products made in the usa and we find out the problem or find out later that the product was made in china we exempt your theory of economic harm every time a product contain opens up the floodgates there are tons of litigation and for the i hate to criticize the example but the difference with the made in the usa examples are there are rules about how much of the product has to be made within the united states versus outside when you make that representation of an insignificant amount like the buttons on the shirt you can you can do that and make that representation but i can say this product has no economic value at all it's worthless to me because it was made in china and not made in the usa you could argue that i don't think that will be a successful damages theory and maybe what judge wilson is getting at is a subjective or an objective test for whether or not something is worthless or worth less if subjective it's a reasonable consumer standard so that's an objective standard in this situation we don't even reach that because the products are legal so it couldn't have been sold is it worth lists are worth less and damini is it's ninety five percent of it's value you still have a claim our our our claim is that it is a one word worthless product however it could be worth less to words and we still have standing that's just a damaged tissue that will be determined by expert wilson's point though every this case every process violation no matter whether it hurts anybody at all you bring class actions for everyone that bought it but this case is a case in which it did hurt everybody because it's illegal to purchase it i think one of the things that that is and i'm sorry to that's that's what a process violation means all right that's what makes it illegal so you know to say somehow that decreases the size of the cases out there i don't quite get the go ahead judge prior i'm out of time but out early it's powder case it's not there's not allegation those cases that there was a misrepresentation about the baby powder but then you go back to it's ok for some people but some people find that acceptable and others don't so that seems subjective to me no no no no there's no standing to bring that misrepresentation case is a stain of any personal injury i was harmed by the product case that's a subjective standard if i'm injured as a consumer in that is subject physically injure the economic injury is a reasonable consumer test and to some extent that would turn on standing when they certainly could have as a defense no no one was actually deceived by us on this legal product i mean they could actually say it's not illegal to sell it so i'm certain you'll make that argument but at this point we're not we're not at issue on that you would always get passed motion to dismiss under your theory not if they were to argue that the product was legal as a matter of law we could lose but they w want to do that all right i think you've reserved some time for a battle mr macleod horn will hear from m morning they please the court my name is robert only i represent the epically i q formulations l l c our position is the district court got it right and i think for the same reasons many of the same reasons you're already articulating or we're just asking the questions so that we're just asking the question well i think you're pointing this is we're moving in the right direction as far as i'm concerned if this product cannot legally be sold in the united states that it has no economic value at all right so they purchased a product that has no economic value at all because it cannot be purchased in the united states it's worthless that's their theory of economic harm if y and the the converse to him being number one if that was the only standard than that would mean that every purchase or someone buys something and subsequently the f d a or any other authority comes out and says you know what this product shouldn't be sold in the u s because by the way the facts are that the letters came out warning these other like producers after the product was already in the market so generally speaking the f d a doesn't provide a private cause of action to his clients so what they do is they go through the process they parse out the rulings of the f d a or the decisions and then they apply that to the state consumer law saying it's a misleading label in this case there are no allegations that the label was misleading in fact the ingredient was on the bottle there are no injuries no allegations of nonperformance no argument that they didn't get the benefit of their bargain that's what hubert in the strada books both held they said you know what you have to have a physical or some sort of economic injury will take economic but it has to be concrete and real otherwise anybody who purchase the product can simply say i did buy it but you know what i want my money back what does he mean when he says it was illegal to sell from the outset so first of all it was not illegal to sell from the outset that determination has not been made there is a chemical dmn b a a that the f d a says it's not to be put in the market ok our chemical was metal was  as we stand here today i don't believe is even the same ingredient but taking his allegations is true that would mean the f d a sent out letters telling manufacturers do not use this product anymore if you write that that is d m b a then it should not have been sold and this is motion to dismiss right so it's bush's mess correct so he's right it was illegal to sell it from the outset under the allegations of the complaint if his allegations are taken troops are so but the point is so then back to judge wilson's point it's illegal to sell you bought it without knowing it was illegal or new to you it's worthless so to say it's worthless is assuming you've consumed it like we talked a lot about the talcum powder cases or we can talk about the gnc products and huber people consume these f they're saying legally it's worthless to say it's it you know has no value the people bought this used it suffered no effects didn't say it didn't perform in fact people their clients went back and bolt bought it multiple times because it performed it did have a value it did work i mean it does focus your attention and people used to work out purposes and dietary purposes so it's not worthless they're saying it has zero value because there are going that it's misbranded or it's adulter and those are terms that come out of the f t c f t c day then they apply that to a label and say look under state law we are private cause of action under fedup in florida for example because the label was misleading none of these are allegations that are in the complaint were the motion to dismiss federal court you have to support your allegation with facts they don't do that they basically leave us to guess we bought it and therefore we want our money back ok well did it perform they don't say it didn't before did you get hurt they don't say they got hurt did it you know did you lose a premium to overpay they don't say that none of those things are out there it's not a real concrete injury it's erratic about so it's a good thing so if they had paid a premium would you agree that they're standing in other words they bought this product paid more for it than of similar product and this one is illegal to sell that's a degree they're standing there yes ma'am all right so let's suppose they paid ten dollars for this product and they want to paid five dollars for the other product right that that's an injury in fact yes what's the difference between that and saying we paid ten dollars but we should have paid zero dollars so the difference is is that just saying i paid ten and then you know now i find out there's an illegal and greedy and so it's technically zero that's sort of a theoretical in the air it's not a concrete injury if you had said i bought product as opposed to product b that's concrete you lost money you were misled you bought the wrong product or if you're misled and you just bought the product and you don't buy any  alternative i would say that i don't want that that would meet the test because that's not a concrete injury that's that's spent ten dollars and i wouldn't have spent why is that not a concrete injury because you haven't alleged whether you didn't perform whether you were injured whether you use the product so for example in the baby shampoo cases which is medically and james or says johnson and johnson people you know there was a chemical now that was dangerous people bathed their children in the shampoo the children suffered no ill effects they didn't say it didn't perform and they didn't argue that they paid a premium so the court came back and said look i get it you know this chemical is banned but you're not suffered a concrete injury there is no injury you use the product it worked and that's similar to what happened here let me see if i understand it now let's say you buy a bottle of this supplement for thirty dollars and then you find out oh it contains and adulterated and illegally grady and i'm not going to use it you're out of thirty dollars i'm not you're out a thirty dollars right well technically yes but did you use the product the product perform no i don't use the product i found out after i bought it that it contains this ingredient that's not approved by the federal drug administration i'm not going to use it but i'm out of thirty bucks though i have an economic injury that's an interesting argue because if you haven't consumed it you could argue that no real facts nonperformance you don't know it's almost had it you hadn't consumed it if you don't consume you have judge wilson's thing we probably do have economic injury but if you consume the only way you can come to court is if you actually injured by the problem that's your theory injured is on life here it's actually the third and  and additionally the straw to and both in hubert if you're not hurt it didn't not perform it you know there was a performed and you didn't pay a premium how does how do you deal with this aqua dots case the judge easterbr the circuit you know it's funny aqueducts is a premium case aqueducts is a premium case so that is actually it was the argument was that they paid more than another product so that would fit so if they'd alleged i paid more for product  well actually it's not you have to allege it lots of dietary supplements what they could have alleged that and i don't think they can because you know they'd have to show one cost more or less than the other so they didn't do that they just simply said you know what i purchased it i want my money back that's that's not standing that's not enough as an injury in fact to get you to stand but the lady who brought the cause of action hadn't suffered any ill effects and wasn't likely to suffer so the court said until there's a concrete you know a diagnosis or you actually have a physical injury and the product worked you didn't overpay or didn't allege overpaid for you have no injury otherwise every time something comes out after the fact and they say well you know what this this product is the found later two years later to have a chemical is why i didn't do after the fact i get the after after the fact problem and if the f d a doesn't say don't consume it it seems different they seem to be assuming there's value here we'll let you go forward but their point is this was illegal from the beginning so i don't believe it was illegal from the beginning because they haven't first of all the letters that came out came out i believe after the  ingredient just hasn't been determined but they haven't played any of the items that would get them an injury to go in down the road and challenge this i mean they all they did is purchase it that's all they did and based upon that they're saying we want you know we have concrete damage and they don't because the third has said hubert and i started both said you don't have a physical injury nonperformance or premium argument really what you're doing is yours it's a conclusory statement it's an allegation that's not good enough this case on the sole basis that it is the distributor europa's not alleged to have any involvement in the formulation of the products the manufacture of the products or the labeling of the products now in addition to an actual injury in fact the appellant's must demonstrate that the injury is fairly traceable to both of the dependents in this case appellants failed to specifically allege in addition to failing to allege an injury in fact that they even purchased the products from europa specifically if you look at tab one of the appendix at paragraph seven and eight the plaintiffs purchased the these products from  because when you're dealing with online outlets like e bay for example the products could have come from anybody so in addition to failing to allege the injury in fact in general concrete in particular injury that they suffered by buying these products they've also failed to trace the injury to the defendants in this case and i'd like to follow up on a few of the points raised by the court as explained in the motions to dismiss in this case determining whether a new dietary ingredient is in fact a new dietary and greedy or adulterated is a fact intensive process there is no authoritative list of new dietary ingredients and the f d a has determined has not determined that d m p a is a new dietary ingredient this can be found at have twenty eight of the record at page three and seven through nine also significant the f t c a just not provide a private cause of action twenty one u s c three thirty seven a states that all proceedings for the enforcement to restrain violations this chapter shall be in the name of the united states now that's significant to this case because the allege in the case that i q the manufacturer is also a distributor of their own products so based on their own allegations it's impossible determine whether the products came from i q as opposed to distributors that's an injury that they sustain this traceable to the two distributors because they would not have been able to purchase the product had they not been distributed by the distributors the exclusive distributor right yes your honor that is correct however the plaintiffs bear the burden in this case to trace their injury to one of the defendants there are two plaintiffs there are two defendants the plaintiffs purchase different products on different dates if the plaintiffs haven't met their burden to demonstrate that on september of two thousand and fifteen for example when erna described his product that he purchased a product coming from my client that he lacked  standing as to my client this is a constitutional threshold and is just one part of the three part test of standing laid out in lieu hon versus the defenders of wildlife and so you familiar with this aqua dots case the seventh circuit case your honor honestly i'm not ok all right now keep going then that's fine thank you very much now i also wanted to follow up on a point raised earlier the f d a letters in this case did come out after the plaintiffs purchased their product i just wanted to clarify that for the record that's in the complaint paragraph seven  paragraph a as well as paragraph thirty four your honor so i see my time is how the district court's this decision was correct and we respectfully request that you affirm thank you thank you in order to have article three standing you have to have an injury in fact there is no requirement that injury in fact be a physical injury under these state statutes it's recognized the economic interest in your rice let's say you're right and let's say it benefits you that we're at the motion to dismiss stage where we don't have a lot of oh you have these allegations you don't have discovery but standing is something you have to meet throughout a case so i'm trying to figure out if you win what happens next so i know you want to have a class and so you have your representative members so let's say there deposed and let's say they're asked ok what happened to you and they say well i i used it if it worked or not nothing unusual happens there's no physical injury they continued to use in the only reason they stopped is this f d a notice so what happens to the case at that point i think at that point i'm i'm skeptical selling it and i can't point to physical injury and they got the benefit of their bargain at that point all you've got is the well at some point down the road they might be h and that's what makes it worth a little less than it otherwise was was that's going to be your injury in fact at that point that's not our case ok we're not trying to show that they were physically injured this this case is about a deceptive representation ok it so happens this representation involves selling the drug it's not legal but on our theory because a requirements which are incorporated into the state consumers to say consumer statutes well suppose it was some other misleading representation for example the made in the usa representation would suffice in this in this example where they said ok this product was made one hundred percent the united states and it turns out none of it was man united states that's deceptive conduct and the consumer protection statutes provide a that you can sue for that you can then have a debate about what the damages are we would allege the product as worthless and as judge wilson said you could have people say well no there's still some value there and that's a subject for expert testimony and whether or not we can persuade a jury there are damages estimate is right but you still have standing that's closure what we're watching here is it's all damages and as long as every plaintiff in the class as i wouldn't have bought it just to damages calculations on an article three problems that your basic point yes your honor which is in line with spokeo and language grants if there's a statutory right to sue and you can point to something concrete and here we have an allegation that money was paid it would not otherwise have been paid that's a feiss that's just that's not spoke you at least not the u s supreme court's decision and spoke the truth the set of true well that's the opposite they said congress is not in charge of what article three injury is so you can't spokeo says we don't pay attention when congress speaks that that that that that's correct your honor but the point that i was trying to make was that spokeo is the concrete end result of not have to be physical there's no physical requirement that a statutory right with something else as concrete can suffice right spokeo was was sent back and remained in order for the players to try again in that case in the rancy it was not remanded this court said that the plaintiff's allegation discerning the lack of truncation of the credit card receipts was sufficient that the plaintiff had to keep up with that receipt that was sufficient and self to be an injury and there was no physical requirement here in this case we have an the figure out here whether or not standing determination is premature or can it be revisited later after you get into the case