thank you just give us one second ok good morning your honour's the issues on appeal in this case are straight forward the district court by failing to apply the correct standard of review on a motion to dismiss improperly making a number of unfounded factual determinations at the pleading stage the the arguments of the district court are so shaky on many grounds that defendants a pelleas do not even bother to figures lee defend all of them instead attempting new or previously rejected arguments premised entirely on allegations that plaintiff did representations of the assertions made in the proposed amended complaint the survey cited found that the majority of consumers understand that rule in food labeling to mean no pesticides no artificial chemicals that are directly related that's actually exactly the allegation made by the plaintiff in her complaint the cases where the surveys have previously been rejected were rejected because the survey reaches an entirely different conclusion for example in the demand well the pepsi case this was a survey about the understanding of diet on a soda the plaintiff doesn't need to prove her case she only needs to show that it's plausible that reasonable consumers would understand natural to mean there's no pesticides there's no word official chemicals here and believe matter that the survey because the labeling as opposed to the brand name which is what particularly in issue here no i don't believe that there's there is anything to base that distinction upon if there is a distinction that that's a factual issue and that would be something that would be developed in expert discovery and at that time the judge and the the other side would have the opportunity  to scrutinize the extra reports to depose the experts to look into the method methodology but at this point we have a survey that shows it's plausible that consumers hold a commonsense belief that natural means nothing  natural nothing artificial and to a surprise the plaintiff at this stage of the proceedings is signaling that you cannot bring a case of this kind without st conducting expert discovery and that seems like an inversion of the proper course of a case in which the plaintiff is allowed several months to gather fact discovery and then to conduct an expert report that will be scrutinized by the court another factual determination that the recording properly made was the one between the brand name and representations made elsewhere this is not only unsupported by actual determination the court is determining that consumers believe that consumers place more weight on representations elsewhere on the package that's a factual determination something that would have to be developed through  expert discovery layer in case this is just an assumption the judge is making that consumers just always care more about a statement elsewhere on the label and don't read anything into a brand name this is contradicted by many many cases in this circuit and throughout the country that have held brand names to be misleading including brand names that include the word really and is willing to assume that natural would include some trace element that the f d a never thinks of this as a problem i think it's a real leap to to assume that the average consumer walking into the store knows what levels the f d a allowed so different i might agree with you but i'm going to look at trying to understand what the district court did how the district court thought about this case and i feel the district court simply made a an assumption there pursuing that consumers look at this in a certain way that's just ultimately a factual question we would have an expert conduct a survey to analyze that question because it is a difference between the average consumer and the average person and the person who and the average of the people who really care about whether their trace elements of some kind of a pesticide and that kind of product i mean there may be consumers who walk into a store and they really want to be sure because of some phobia on their part or some feelings that they have that there are no there are no pesticides in the in the product and would that be a valid a valid basis for  that the survey cited shows that it is plausible that the majority of all consumers understand natural to me no pesticides period and that's really what your case is all that you're not targeting in particular oranges in order to be one hundred percent juice it is directly expressed from those oranges it's not concentrated and it's on adulterated meaning that it's not diminished in any sort of way is a trace elements judge ross would be safe because if you look at the context your honor the tolerance of the status by the e p a has taken to account the extent to which the use of such substances required or cannot be avoided in the production of this the plaintiff is alleging that she wants a similar result as if squeezed from the oranges that themselves apparently unreasonable the oranges that you get from florida natural growers not from concentrate oranges are the same oranges as if you went into the produce section of the store that consumer has been going to for decades or if you want to form state of florida if you squeeze those oranges you would still get a trace amount of lies to say this is something that people understand the same way if you come out and stand notwithstanding a label that says percent natural credit under your theory that it's common sense that there's trace elements of that chemical why couldn't you say it's on i believe we i believe it could and if you bear with me for for a nd if percent use it goes on in that same section subsection i think it's section al that a beverage is required to have that percentage juice declaration on the label and then in that same subsection l it says one hundred percent or one hundred percent juice declaration so they're saying you can if you're not one hundred percent juice you can call it one hundred percent natural one hundred percent pure it is with all respect to  judge ross if you wouldn't have this regulation you wouldn't have the cinnamon in context if you couldn't if you if one hundred percent juice couldn't be called one hundred can be called one hundred percent natural one hundred percent pure because you wouldn't have to warn producers who aren't one hundred percent is that you can call it you can't describe it as one hundred percent pure one hundred percent natural there's a whole regulatory trace elements trace elements or in every food product throughout the country for for decades it makes it possible for people in new york to drink juice grown in florida it makes it possible for people in florida to get grapefruit grown in california it makes it possible for people in the midwest or big cities to have a call this is great that you did yes ross rely on these arguments and i think she relied on common sense that it's been there for a long period of time she said that the label just says florida's natural and then it says one hundred percent years it's in a refrigerated section it does not say one hundred percent natural it doesn't say one hundred percent pure it does not represent that there are no pesticides used in the production process and it doesn't say that if you can it doesn't say any representation of what is used to grow the j allegations of the proposed amended complaint that maybe find this ruling but we're here ok but she read it yeah oh well it doesn't this is the survey didn't address orange juice as judge so all of them pointed out it didn't address the product that issue or the label at issue it simply states a big majority of consumers in does not disclose how toxic makes them well i know that we should be we should be sensitive in plausibility standard because we should but this case is so is what i would call an absurdity in in the law because as pointed out by the by the rostam that that was that was very as to what it meant were used and that it didn't support the allegations in the complaint and in the survey did not the survey didn't address orange juice it didn't address this particular label and it didn't address reality the e p a and the f d a have looked looked at this and looked at the production of orange juice or milk and so there's going to brand name that has an event longstanding has it for years we call it one hundred percent years we've had prior courts that this is could have a different meaning right organic would have a different oh yes and that was what the court pointed out in the in the quaker oats case that even organic has allows for a trace mother pesticide at a lower rate and actually this reduced rate would be what's alleged in this complaint would be even lower than that organic products and here we are we have we have we have an amount that is extremely low statistically insignificant it's the realities of production and if the court ruled that this could go forward it basically says that any fruit or juice that's currently sold in the grocery store cannot be called natural because you just can't you can't eliminate it with i mean it's fact this complaint and its in its request for injunctive relief asked for the product to be changed to conform to conform with the label and that in and of itself would be preempted and they yes hundred percent one hundred percent natural yogurt that was advertised as one hundred percent natural and the point of complaint while the cows are eating genetically modified feed and the court said well you know this is r back in and you know in the chain of production so therefore it's not misleading to call that product one hundred percent natural or one hundred percent pure in this case it's a fact of life that you know liason fed has been used as  kill or there's no allegation in the complaint that we're putting it in as an ingredient there's no allegation in the complaint that it's anything else than a weed killer that's that that's put on the ground it's been around since  i'd like to respond just briefly to the argument regarding preemption that was just mentioned this argument has been denied and i've lost count of the number of cases along these lines but it was tonight in this one as well this is simply not a case about the safety of specific levels of a chemical it's not about the requirement to disclose a chemical  that's clear from the complaint the complaint is about whether the word natural which isn't regulated by the federal government and which defendants chose to use whether that is being used properly that this is not about safety and it's not about disclosure what about what about the common sense view consumers really could care less about whether the circumstances it's an unwarranted assumption that consumers know what the f d a level is for a given chemical and that that's how they base their understanding of the word natural i believe it's more common sense that they simply think natural means nothing unnatural no artificial chemicals and learn that there are pesticides used in orange gro that trace amounts it into that are totally safe that it is a product that get into a product labeled natural yes that's why people buy products natural as they think that this product was made in a show that consumers don't place a distinction between artificial chemicals that get in as part of the growing process and artificial chemicals that are an additive there's no reason to assume that consumers are more troubled by an artificial additive than by an artificial pesticide in fact pesticides are one of the main things consumers seek to avoid when purchasing natural products what about the yogurt case which i can't really pronounce pug your friend just mentioned yes how does that factor in here it's not presidential obviously but it's another case involving you know chemicals used in the early stages of consumers are actually buying here consumers are buying a product that says natural and in that product is something not natural that's a very different case than than something that simply doesn't contain the substance and just in terms of limiting principles on on the theory that you're putting far and any product with natural in the title when it modifies something or not on the basis of the consumer study th you're not alleging that there's nothing in the complaint that says