like to reserve five minutes of my time or rebuttal if i may thank you this case presents the same question that was recently addressed by those court in cressler versus c v s the decision that we believe should be controlling here the question is whether the food drug and cosmetic act priyam surprised at the last of the challenges the structure of function claim on the label of a dietary supplement as false and misleading in interrupt because i guess i'm confused about the logical relationship between issues here it's see a missile like cressler as you started telling us already decided that claims under california law that trucks are in function leave all are false are not preempted and i think we're bound by that so i'm not clear why we need to go and ask anything at other than it is this claim of the same form of california law claim as was a hostler well i couldn't agree with you more your honor i do believe that cressler is controlling here and there is really no question that the claim here is of the same type at issue in cressler it is in both cases a lawsuit was brought by a private plaintiff challenging the structure and function playing on the label of a dietary supplement as false and misleading well cases of all the same district court judge and the judge made what in our view are the two identical  judgement is it your view that if a trier of fact decide that there isn't substantiation you've got to go to the jury so sort of the reverse of what you're arguing the district cheer they have one hundred dollars studies you have one they have one hundred experts you have you got to go to the jury as to actually happens because you're saying it's not preempt it because the standards are the same as what the f d a has established so my question is if you come up with one admissible expert  o that they don't have any substantiation and they have a one hundred who say they do you get to go to the jury unless the district court is in a position to reasonably conclude that e the statute which has to be consistent with talks about the manufacturer as substantiation and it to me it can't be that they have to have evidence about which no reasonable experts would would disagree i mean i don't think we're we're dealing with the same statute is every time you come up with one expert on their determine whether the available scientific evidence is adequate to substantiate a careen it is important to consider all relevant research both favorable and unfavorable and then the they f d a goes on t conflicting the board inconsistent results raise serious questions as to whether a particular claimed he and she is right after program to say that right after the or you're courting they say there is no general rule for how many studies or what combination enders and now we're just under california law right yes i mean i disagree a little bit with your honor's suggestion that the court would have to consider what california why everybody agrees here what california law requires california law puts the burden on the plaintiff to prove its case by a preponderance of the evidence and cases involving structure function claims have a by the totality of the of and standard this argument here is that that is no different from the standard that the f defendants daubert motions with regard to plaintiff's experts in both the st and nd rounds of summary judgment because it held it didn't matter if i have had visible reliable evidence under d'albert because one study would be enough for the defendant  objections to our our experts we believe we will pass with flying colors because even though cosco repeatedly sides it's one thousand nine hundred and eighty s our experts have stated in there were reports which again the district never reviewed that those studies are flawed this leaning and have been rendered utterly and significant by several metal studies that our experts have relied upon and that we believe conclusively show that this dietary supplement has no value so when we go back to the district where there have i have a lot of difficulty seeing how the structure you described i mean obviously we have to look at crest but i have a lot of difficulty seeing how the structure that you described if that really is what california last sat is out that's consistent with the f d a act because to me that takes all meaning out of the word substantiation that if it's question judge gannett when i was about to say it is what i disagree with your reading about the media reading about substantiation requirements and on this point the district court for summary judgment ruling is actually ironically consistent with the f d a is reading substantiation doesn't merely mean that a plated so that a defendant or rather a manufacturer has complied with the substantiation requirement so long as it has any evidence to support its claim it has to actually establish its claim by proof of competent evidence and and that's our position here that the perfectly plausible reading of the statute and again it's completely consistent with what the f can pass the substantiation requirement by merely pointing to one study that basically renders the entire requirement meaningless recount so i tend to agree with you on that but the statute talks about in six being the manufacturer has substantiation such a statement is truthful and not misleading and claims i agree with you your honor that that if once we finally get to the jury we only have one study and they have ninety nine we're going to lose and that would mean the lose on the merits our position is simply that that the claim is not whether the claim is preempted is a value added by comparing the federal substantiations standard which is measured by looking at the totality of the evidence with the state la b standard which is also measured according to the totality of the evidence i see i only have forty six seconds remaining  blank slate could you explain how you're going to get around pressler earth so you are going cross learn that this is ink into the score and he much different procedural all through it was on a motion to dismiss as opposed to a motion for summary judgment the district were not have the opportunity to review any distance but are we looking at the form of the claim what are the elements of the claim under california law compared to what federal law requires and whether it's created because they're different and i don't understand how it matters where the posture we're in whether it's mostly business or summary judgment if we're looking at the needs are of the california law but even if you look at the nature of the claim versus the nature of what we need to be california consumer statute that can say you don't meet the f t c you don't meet the f t c a requirements you have no substantiation that they can't go forward with that that that kind of a claim is preempted yes you do i would respectfully disagree that this report by the one and done standard if you read it in the in itself there is multiple references competent and reliable scientific evidence which is a phrase that comes from interpretation of substantiation involves competent and reliable scientific evidence and but regardless of whether the court did want it done or not in any time so what to the extended there's a disputed issue of fact on the issue of substantiation that is for the district to resolve as the supreme court and albert make clear what we're talking about a preemption analysis district or resolve well that's right that's right that's right that's right counsel it strikes me that you have an almost insurmountable burden with cressler with that because i think we said in cressler not preempted there's a role for and fourteen it says it is well established that supplement makers can be sued for false claims and no federal preemption exists under the f t c a either by statute or by implication that the f d a does not what cressler tells us then i think i think we're under the proponents of the evidence standard that our court in the last appeal of this case that was the standard for state law right is that correct in your view if they if they claim incorrectly blending the preemption and merits in a way that's not helpful at all and is in fact from close by custom so let me just frame where i see the case to me and i think you will lose on preemption but what you are telling us is that because we have a fully developed summary judgment record we can hold as an alternative grounds for firms that no reasonable fact finder could find as a matter of law that your client has lacked substantiation and that's that's the argument i hear you putting to us it's basically a merit summary judgment argument as a matter of law we're entitled to prevail because even if all of this all of these studies were put before a jury no reasonable jury could state if those two are determined to be the scene in other words that you know the the plaintiff would have to show you know or to prevail under state law the same things that would be required under the f d a standard and there's no the only time there could be prevention is if there is a difference in the legal standard that the state is trying to apply versus the federal law and i think in cressler we've pretty much already resolved that against you so that's watching you all you were then left to argue is here when it claims that this court did examine all of the evidence and look at the totality and that and for that reason the difference of procedural posture between this case and president should not matter regarding counsel's last argument that this is a case like dock our where there was a mismatch between the plaintiff's allegations and the plaintiff's evidence in other words they're claiming that that what we're relying on to disprove the structure function claims doesn't actually go to what the structure function claims actually say is wrong they are saying that the basis for that argument is they're claiming that we are relying exclusively on disease studies to prove our claim that at paragraph sixteen quote i do not consider studies that looked at subjects with as pertinent to the questions at hand because i understand from counsel that these products are not intended to treat a disease that so that's  point one there is no mismatch between our evidence and our allegations that both of demonstrated by the allegations of the complaint and therefore we would urge the court to reject counsel's attempt to fit this case into the dock this case is clearly governed by cressler i do think it would be useful for this court to make clear if it renders a decision in our favor that cressler is not limited to cases decided on a motion to dismiss and that the different procedural posture here versus cressler is immaterial thanks should win thank you thank you very much just argued is submitted