what your time i will think of this appeal arises from the twelve the six dismissal of a consumer class action asserting claims under california's unfair competition law false advertising law and consumer legal remedies  complaint details the who want when where and how it articulates each point it's reasonable reliance on either misrepresentations or omissions in purchasing monster energy drinks at a premium first with respect to the hydration claims that includes the statements hydrates like a sports drink things you do know from this record but the premium once you are it changes i don't know exactly what the premium was there is a premium however we don't either from i wonder why don't they tell us what the premium is sold at a higher price than sports drinks i will i will submit that then is that all you mean by at a premium more than some other thing you know there are no similar things if you're looking at other energy drinks but we're not comparing them to other energy i used opperman versus pop is because of the of the way that judge tiger distills the factors and made it clear and i'd like to get to the longer term there but there is no ninth circuit your position right i'm disappointed with its verses gerber four for the position that for the long term advertising campaign no your honor there is no ninth circuit case on point yes ok but getting back to the statements of the hybrids like a sports drink the fact is that that statement is false because caffeine does not hydrate sports drinks don't contain two hundred milligrams or more of caffeine and they don't warrant to consume responsibly or limit consumption the words rehydrate in all upper case bold further reinforce this misrepresentation and placement next to sports drinks soft soft drinks and juices misleads consume a reasonable consumers the science as we complaint and i anyway as i mentioned it's like a sports drink is is just a false statement that elevated levels of caffeine in sports drinks they they act as a direct they d hydrate the science contradicts monsters district court chose not to believe that your point of saw these things that most of the standing right it does not for townsend the court found the townsend have standing however she found it implausible that he could have read and relied on these statements as as as you know reasonable that a reasonable consumer would think that it actually hydrates like a sports drink that in fact monster has changed that since a complaint was filed to instead of high grades like a sports drink it now says that fires you up and instead of saying brings you back it's it's now says the perfect choice so the district court speculated that the label change could have been motivated by the company changing its advertising campaign or focus but the record doesn't support that speculation and at the pleading stage your honour's plaintiff's allegations have to be accepted as true and viewed in the life most like most favorable to play your perspective insofar as the complaint itself is concerned you have alleged all you need to not say what might happen in a later point what might that mean the summary judgment is certainly with the trial but at this point you're saying the district judge simply has no basis for making a determination whether the client actually saw are correct these things or not is absolutely your honor i'd like to address quickly the second set of statements which is the ideal combo in the writing  no your honor i'm saying that even if you drink three cans a day that is too much caffeine even for an adult but for a teenager the teenagers that that mock monster so aggressively targets that it admitted lee targets if they drink one can a day but we're on the freakin statement right and you're saying it's a false statement yes and i'm trying to explore the falsity of it you seem to be saying that they should limit much caffeine on a daily basis your honor you may choose to drink as many as you want but the fact is the manufacturer has an affirmative duty to disclose risks safety issues as well as i know we're using your term with it's my understanding is that there's no preemption of safety warnings right and that but not in terms of any requirement that you specify the amount of caffeine and so on that is i'm talking about when you were talking about how much caffeine is in it you said that it was good to put this warning they said limit yourself to three drinks you said instead they need to disclose that to get fame was there and could be harmful patel i think the court should focus on the specific allegations from these three plaintiffs as to their connection with the drinks and the statements that give rise to their claims here you are talking about the understanding issue or on the specific sufficiency of the falsity i use on standing it's whether or not they were deceived it's whether or not they suffered any injury so starting with mr fisher  and be specific the  the allegations began in paragraph twenty three of the second amended complaint it's in the excerpts of record at page eighty two the mr fisher says that he was given a sample of a monster energy drink doesn't say that he read anything on the label that he relied on anything on the label so he hasn't alleged any concrete or actual injury all he said is he got a and he consumed didn't he continue to purchase is an omission enough in this case or must be an affirmative statement well what the plaintiffs argued is they said that there were three on can and they pointed to two statements on the monster rehab product number one quenches thirds hydrates like a sports drink and brings you back after a hard stay hard day's night and lastly refreshed rehydrate revive or re store now mr fisher doesn't make any of those claims they also argued that monsters should be liable because of what they label them off label off label claims which relate to various marketing or advertising initiatives and again mr fisher doesn't pledge any exposure to any of that all he said is i bought a product and nobody told me that it is unsafe that's essentially his claim and that's that is not enough for article three standing with respect to mr townsend mr townsend  makes claims with regard to the rehab product and he says in paragraph twenty four at excerpt of record eighty three that he decided to buy the product because it indicated that the drink had one hundred percent of the daily values of various vitamins as well as supplements it has those vitamins it has the supplements there's no deception there he does say that he read and relied on the affirmative representation that the drink went just thirst hydrates like a sports drink and brings you back but he doesn't say that when he consumed it it didn't quite use thirst he doesn't have a great record for children he doesn't say it didn't hydrate he doesn't say what he understood that to mean we have to look the record before the court and it's in the supplemental excerpts of record at pages twelve and thirteen we have a copy of a monster rehab label and we have a copy of the ingredient information for gator aide to and you will see that there are electrolytes in both of them in the act there are more electrolytes in the monster rehab product than in the gator aid to product so it is a true statement if you understand sports drink to mean a hydration product there are sports drinks that don't have electrolytes are ones that are intended to help you perform there are ones that are intended to help you recover after athletic you can move along rule but again with respect to that statement mr townson doesn't allege any deception and he has three economic injury fraud based claims under california consumer product protection statutes and he has an alleged any fraud and for that reason and the multiple other reasons that judge phillips found his claims were insufficient and then you turned to mr krause the third plaintiff and he's referred to paragraph twenty five beginning at page eighty four through eighty five and he relies on this ideal combo statement of the right ingredients in the right proportion to deliver the big bad buzz and what they allege in the complaint is he thought that that meant that monster drinks were safe and what judge phillips said is that that is not the type of reading that a reasonable consumer would give to those words those words are not objective clearly defined meanings they are puffery and it is an implausible interpretation to take those words and construe them to be a representation of safety so those are the on label representations that they made let me ask you this counsel of we have an unpublished low pay that deals with how we construe omissions in connection with false advertising well in this case well the omission claim here is a failure to disclose that the product was not safe and there are multiple problems with that theory first of all there is no duty of disclosure  there's no fiduciary obligation secondly there's no suggestion that the company is concealing information that it has subpoenaed your access to caffeine is one of the most widely studied written the subjects the entire subject of energy drinks in the levels of caffeine and whether too much caffeine or is unsafe for different groups is something that is in the public domain it's obviously been the atop the subject of congressional attention that's been the subject of attention from f d a f d a has held hearings so there is nothing that is concealed here and in addition when monster energy marketed to its products as dietary supplements it was required by the federal food drug and cosmetic act to file what are called adverse event reports and so if somebody called up the customer relations department and said i just had one of these drinks and i had to go to the emergency room monster that is required to in files adverse events reports and in fact adverse events reports  are attached as an exhibit to some of the pleadings by plaintiffs so there is no disclosure no concealment here but again i don't think that there is any duty so above bottom line and from your perspective with respect to these three plaintiffs none of them has alleged that anything that or curd to them is in any way tied to false statements that were allegedly made by monsters right that's correct ok particularly they haven't alleged that they relied to their detriment on claimed misrepresentations they haven't alleged that they had any exposure to the so called off label  finding that even if they overcame all of those hurdles that it would be appropriate to exercise or defer to the primary jurisdiction of f d a given that f d a has ere continues to be speeches by members of f d a talking about it if you go on the f d a website and look at the public meeting for various public calendars for various insufficent as it shows for example of the director of the center for food safety and applied interest and i had a caffeine systematic review meeting in february she had one in november there was the statement by f d a on caffeine added the peanut butter and don't let us take you away from the point you were making  giving us the reasons the right shot for all of those reasons what a judge phillips did is she dismissed without prejudice because the primary jurisdiction but i think the leave that the court can affirm and dismissed with prejudice on all of the other grounds basically a claim for relief has not been stated and doesn't even need to reach the issue but you are going to counsel that while any requirement to disclose the amount of caffeine is preempted specific warning and that warning is identical with a warning that for example is set forth in the nutrition labeling and enforcement act then it is not preempted if i say it's not i'm just trying to understand the parameters of the preemption here for or a food manufacturer to introduce a product into the into the market  has to first conclude that the ingredients and product are generally recognized as safe and there are various ways that an ingredient can qualify as generally recognized as safe it could be in food for a manufacturer can self affirm and if a manufacturer self affirms and that is the most typical method for determining the safety of ingredients then f d a and only f i'm just talking about preemption here so much my reading of it is that safety warnings long as they don't require disclosure of content or the items that are clearly preempted  but again what i'm saying here is that there is a safe harbor what f d a has said is if you self if you on your own affirmed that the ingredients are grass f d a can challenge it but nobody else can challenge it and there's pretty preemption for that your client we are criticizing your so i want to address a few things quickly fisher fisher i absolutely was exposed to the long term marketing campaign monster future but he looked at that he's a smart kid he looked at the can he saw there was nothing there that indicated it was bad for him you know all the kids nowadays read can labels and he decided to drink it and then he continued to drink couple other things we could probably put a civics lesson on there justice o'connor would be please