reasonable consumer would have no basis to infer anything more from diet dr pepper as label or advertising than that it is a calorie free soft drink and nd and found that we failed to plead adequate scientific causation to  support our claims on the reasonable consumer and your counsel just looking at the structure of those two things if we were to agree with the district court on the st one we would have to get to the nd one that's probably true and that's what the nd circuit did  geffner i think what's interesting about the three decisions in the nd circuit two of them are memorandums one of them is a published decision the two memorandums found on the basis of the science and the published decision found on the basis of the reasonable consumer standard but none of those decisions found the basis of all things and if you were to review the transcript of the proceedings in the gaffner case the one that was published the panel actually seemed to be convinced that the science would support the claims but wasn't convinced on the reasonable to suppose that if you were to assume that the science would support the claims you still lose on that if you can't sustain the st point to that a reasonable zoomers not going to infer a thing from you're right we lose if we can't sustain that st point but i would argue that we can sustain that st point also but but that meant that when you have that when you have to be able to prove no matter what that's true that's true that's the reason the consumer standard is what guides these claims here and wonder why don't we start with that one yes so this really comes down to an issue of interpretation and it's  our position that interpretation is an issue of fact and if we plead the fact of it the interpretation that fact has to be accepted as true the district court found that fact was unreasonable or implausible for various reasons  but it's our contention that that fact had to be accepted and then determine whether it's plausible with that fact accepted whether there's a leader basis for eclipse but even if there had to be some sort of reasonability standard behind that fact we played lots of things that i think  support the reasonable consumer standard in the interpretation that we played for one thing just common sense and common experience tells us that people drink diet soda to avoid the negative health consequences that come along with regular soda including weight gain because of its calories is that true i mean i'm not sure that it's common sense your honor i would submit that it is you know maybe a lot of people that would argue just the opposite that actually a regular soda is more healthy and that that seems to be the common the common assumption well i don't think that there's a lot of people arguing that sugar beverages are more healthy than diet ever and as they are they're one of the leading causes of heart disease and diabetes and targeted because of th use common sense which tends to draw on our own experience yeah you know i i do get psyched my wife doesn't like the taste of of regular coke and the only very good diet coke it has nothing to do with the absence of calories to do with it's a different it's a different product  and my my friends who drink coke regularly claim that they can tell the difference immediately between the two look i saw a comedian the other night and he was saying talking about how he ate all this food and then he put nonfat milk in his coffee because you have to save calories where you can and we know people go to mcdonald's right in order the big mac in the big fries and have the diet coke and there's sort of a joke about that but the truth is people do choose diet beverages to make a choice to avoid calories where they can eat junk that does does that help your argument i agree with your statement there that they choose it to avoid calories yes i think that's divorced from the help benefits which are a little more complicated ok so the so the courts  basically said that di indicates only that it lacks calories and sugar and nothing more and what i would submit is that that fact that it lacks calories and sugar doesn't have any import to consumers other then for health reasons or for body weight reasons you know difference in calories doesn't mean a difference in taste but it doesn't mean it does i mean there's a difference between the aspartame and and the corn syrup that's true but all i'm saying is something like that calories themselves don't provide what calories provide is energy in and they can't be turned into fat and so forth and you can do different things to make calories taste differently but the calories themself have no import other then as relates to the let me  because all it does is say it's just a description of how many calories are that's correct it does not say it doesn't say diet it does describe how many calories and even zero calorie kolker zero sugar coke is is accurate and descriptive but diet would seem it goes above and beyond merely indicating zero calories of why wouldn't why wouldn't coke coke zero or dr pepper zero be misleading because even though it's accurate it's the jets that you should buy this product because it contains contains no calories yeah so and therefore it might be a part of all you know all the scientific studies that you're buying that you're that you've advocated here that it's not as healthy even though it lacks the calories so i think it's possible that if it was just diet coke zero that that could be misleading under the theory might i thought it was dica zero sugar or zero calories which would be more specific in the descriptive but if it was just zero it might it might be misleading on our theory but that's theory i mean we're here on diet coke so you know that's an interesting question but i think and diet it's really it's really at least a lot more clear and one thing i'd like to point to we does does dr pepper as one thing i was looking for in the complaint and do they make any help claims about weight watchers on the product no they don't make any health claims about weight loss on the on the can of coke or or in any of their advertisements or not in their current advertisements but i think what you have to understand is these products became ubiquitous in the in the sixty's and seventy's as and were heavily advertised at that time as a weight loss product and it became part of our culture that this is just what you do to avoid the calories and to avoid the weight gain with regular stuff and so nowadays they really don't have to advertise it that way as expects pleasantly do i think we have some example you're describing right now isn't part of your complaint it is actually is pled to as there are some old advertisements in  there to give validity to our interpretation to show i do remember when we all go back and read it but if you had the sites i do  thirty five dollars or so that range give or take one thing i'd like to point out is in the pallies response brief on page twenty four dollars of the brief there's a listing of dictionary definitions and this is one of the things we provided and one of the consumption with the weight reduction diet dietetic diet soft drinks and that's really what we're getting at here is people believe these are suitable for consumption with a weight reduction diet that's an additive and i don't think people go into a diet dr pepper it's a single thing it's a single entity which is different from dr pepper just as diet coke is something very different if you're in the south if you're in the south people are going to are going to say come on over for cokes and they could be serving you root beer  and if you're going to getting cokes than then they haven't they haven't nobody's said what he wanted to diet coke or coke because those are two different products and so it seems to me that in our in the way that these things have entered into the culture at this point that diet coke is just one word i agree it's a different product and i think in the culture at this point people believe that that's the healthy choice to make and the science that we have suggest that that's not as healthy as a choice in comparison to regular soda as people believe i'm just a few more points before i really run to my time i ask you this is order to preserve your claim you just have to say some people think it's that they're going to lose weight and they don't lose weight or you have to have surveys or when you have to do to show where there's a just to pick up anybody on the street say that i want to lose weight that dr pepper and i did well at this stage we just have to plead a plausible claim but in order to prove our claims i think we're going to have to have evidence of what a reasonable interpretation is that could be through a surveyor or otherwise through defend his documents for example and we're going to have to show science and show scientific evidence through an expert but what's important is the scientific evidence doesn't have to causation in a false advertising case what we have to show is that reasonable consumers might be misled by the statement diet in light of what the science says and if the science is somewhat equivocal but that it's going in a direction and it's  young thank you your honor evan young for dr pepper seven up a number of the things that were were discussed or covered in the briefs i think that the nd circuit has covered the waterfront quite frankly the governor case references all of the other decisions including the two prior ones it doesn't disclaim the science but it does focus i think on what is the easiest aspect of this case where where the court has been focused today whether diet dr pepper is all one word or whether it's three words or two the function of the sound diet is what is the heart of this complaint and the district court like all five district courts that have considered all eight circuit judges on the nd circuit in three different panels to consider it found that it is implausible for several different reasons that a reasonable consumer could possibly understand that because diet dr pepper has the sounds diet in it that it makes promises about weight loss or health benefits or anything and that the governor opinion makes two specific points that really could resolve the case here in the others that are waiting for this court the diet pepsi cases waiting and judge not as court for example and that is st whenever you have a diet soft drink that word refers to the reference beverage diet coke diet pepsi diet dr pepper it's not comparing it to water or medicine or air or something else it's the reference beverage and then secondly the word diet is saying to the reasonable consumer in this part of our language it is ubiquitous as part of our culture that it's reduced in calories or like diet dr pepper zero calories but that doesn't that beg the question about well with them why don't you just say dr pepper zero as opposed to diet dr pepper there must be some difference between those two uses and how do we account for that well it's historical this is a phrase that was used as long canadian nine it was part of your your your brand name and you satisfy the requirements in the c f r for lower reduced calorie products which require a reduction of forty percent or a rd of the calories and of course dropping it all the way to zero means that if it's true that it's part of our language as all the dictionaries say they've used diet soda as the exemplar of when it function as an adjective if it's if that is true if the ordinary person in our country reflected by all the dictionaries that the plaintiff herself cited understand it to have that meaning than it is not plausible that and it goes all the way down to zero wouldn't satisfy is not what congressman it's not what the f d a meant is not what all the other judges who come from a broad jurisprudential a set of backgrounds all different kinds of approaches to all different areas the law all unanimously saying this doesn't work backing a factor what is that  about it's a federal us you know is it this is the way it is it's following what this court has followed in cases like editor and that is taking the supreme court's guidance an eight ball that you have to use judicial experience and common sense in ensuring that federal courts are not abused by bringing through claims that are simply not plausible and forcing the processes of summary judgment or even trial as plain if you're insists simply by alleging that a consumer on the meaning of diet didn't even address it in the briefing and everything that if it was so insignificant they're so that's just number one as a backer not that you're in any way beyond by it but it was not persuasive to any of those eight judges one judge is not on two panels in that  court secondly all that survey i think does is assess expectations of the reasonable consumer visa v dr pepper and it's not disputed by anyone that drinking diet dr pepper will indeed be better for your weight than drinking the same amount of dr pepper both of them are delicious refreshing beverage is if those are your two options and if that's what the comparison or it is as governor says we're comparing it to the reference beverage then it's not really in dispute that drinking something is all right how to give part of the problem that argument is you say it's undisputed but i think that's where it gets a little complicated because the science does seem to dispute that that apparently there's some basis to believe or some whether it's causal or not that if you're drinking diet soda it may be that that diet soda is fewer calories but for some reason you end up either eating more calories throughout the day or something like that and comparing it to water let's just assume for the nd that that's true all of those studies have have been thoroughly refuted by every judge as well in terms of a causal link there is some correlation there are lots of reasons for it and my friend on the other side has explained well it can all be reverse causality which is the idea that i'm drinking the diet dr pepper because i'm overweight rather than the reverse but some of it is they acknowledge that some of it is the studies say that all that does is to say that whatever this  delta might be some of it we can wipe away as reverse causality in the rest of it whatever is left is still just correlation and association and judge bork was right neither in the law nor in science is correlation causation and  something that they allege that's their complaint is not that that something just that the because you're judges and causation is often talked about as an element you're going to insist on it with the whole allegation here is diet dr pepper causes theory it doesn't i mean because diet presumably diet you're actually trying to lose weight so if they said hey you're drinking mess and it doesn't do anything for your weight would they still have it would they have a claim at that point well they wouldn't part because of the st artist i understand is really the key yeah so whatever might be true in the studies and the reality is that every judge to have written do you think we need to get to the studies are you think we can just decide this case on the reasonable consumer i think you can do that just like the nd circuit it is the frankly cleanest way you know there's there's something about going through all of these studies that perhaps at least for your law clerks benefit if you decided not to  force them to read all of those studies would would would make them think more fondly of you in their future years but you don't have to do it for the more important reason that as the nd circuit said the word diet conveys a message that it's relative to the brand beverage and it contains fewer calories here no calories that's the entirety of the message that a reasonable consumer would convey and the labeling is entirely accurate on those points as diet dr pepper there is zero calories that are reflected this is so different from cases like williams versus gerber for example you know that to the extent that that case is one that has been used to allow for claims to proceed as because there were pictures of four different fruits the label said that it was specifically designed for your children to grow up healthy and strong it was saying the this is made with all other natural ingredients and it turns out there was just a little bit of one fruit juice which was not even one of the fruits that was draw n on the pitcher and the rest of it was sugar it was candy in other words that was marketed to parents as oh this is a very healthy choice you know you should buy this as responsible so what it would be would the plaintiffs have a case if dr pepper producing advertisements separate and apart from the naming of it that implied that you could lose it you would lose weight by drinking diet dr pepper well i think that if the science with statements that like this is the numerical weight loss medicine if what if you do any defrag throws a diet dr pepper and do it you know and endorsed beverage and and puts it out in their meal plans and sends a sixpack a diet dr pepper in their weight loss plans does that change the analysis well it might for jenny craig i suppose but i'm not sure it would for us and again all of this is in this hypothetical world and i recognize that but it let's talk about the jenny craig for a nd when something is label diet and she sends out you know the diet meals weight watchers at the diet if i eat for weight watchers lasagna packs i may as well just go and have a cheeseburger but this diet does not mean you will lose weight inherently that you want it means that it's something that will help you because of the reduced caloric intake or so or so like that but to say that it's like drinking water that it will have no calories if that's what diet is going to that's not dieting that is fasting or  starving right and so i don't think the necessarily even under that hypothetical if you accept the nd circuit's definition which is that this is part of our language now that means that it's lower calories than the  brand beverage and the it is it is just relative to it and not to something else then i'm not sure that that would necessarily be false and misleading i agree it would be a different circumstance that's not what dr pepper is doing there  ads in the record going back several decades well i guess that's why i was asking the question because there are ads apparently going back several decades and what bearing does that have on today i guess we need to look at what the common understanding is today although i mean the class presumably or people who may have drunk diet dr pepper back when those ads were running i mean are the purported class so i mean does that have any bring that diet back to that dr pepper apparently when was the most recent ad that they ran in that i think i think there's something that's referenced in the very early part of this century that's in there a lot of the ads from earlier periods were under different names even and all of those were presented to all of the judges there present all three nd circuit panels which said that there was nothing in those ads that made any promise that there are ads that are shown the that have a picture of a cake you know five layer cake milkshake you know stack of donuts things like that those are in the complaint itself and if you're comparing diet dr pepper to a dessert saying this is a diet dessert in effect what again you're making is the analogy to dr pepper you know the delicious refreshing beverage one hundred and fifty dollars calories per can is not comparing it to water nobody thinks of water as a dessert if you're taking diet dr pepper and you're sort of skinny and down the cake or putting the straw on the the donuts and you can sort of have this in a guilty way it's compared to a dr pepper not compared to water or not compared to medicine so all of those you know long ago advertisements which are way outside the period of limitations don't say anything they were available when congress in one hundred and eighty nine specifically said you can keep this labels long as you meet the requirements in the c f r which we unquestionably do you can continue to call it diet and that's  think that reflects the fact that congress the f d a your fellow judges across the country and the american people as reflected in virtually every dictionary think of this is an open and shut case and when you're when you're asking what a reasonable consumer thinks how often is it the case that you can actually look to a dictionary not just to get a general principle that you'll then apply but literally for every definition to expressly talk about the specific feature of the specific product that's being challenged is false or misleading and it's a no no what it means is it's a lower calorie version of the reference product that's why this really ought to be an easy case if this case cannot be dismissed the way that all the judges have done it it really honestly is hard to imagine that the cases like evan are like the starbucks for a zest for starbucks twelve ounces of iced coffee well mr furze i surely did believe that that meant i got twelve ounces of coffee and then i get some ice on top of that but no reasonable consumer could believe that you could if you could believe that i have no doubt that mrs basara truly believes that drinking diet dr pepper would cause her to lose weight but that isn't the study and that's an interesting question where you draw the line because the studies at least as i read about her remember right they suggest that twelve to thirteen percent of the people that they studied suggested they thought they would lose weight and i guess your position is that's not enough what if those studies had come back and said sixty turns out sixty percent think that you're going to lose weight if you drink dr pepper and we're all as judges it is and what we don't think that we don't know anyone who thinks that but you've got studies presented that say sixty percent do would that change the analysis on the reasonable well the survey th or mentioned that i think is where we draw it from you know the last point i would have made is it's essentially conclusionary on that we have no basis to know what any of that means but it does reflect i think that anyone answering that question given the understanding of what diet means in the softer context thought i could lose weight compared to drinking the dr pepper which they surely would that's not really in dispute and so all that that does i think is reflected expected to have been a higher number frankly that than what we saw and that's why i think the survey if anything lawks down which should already be based on the english language definition of an airtight case there are no further questions for me thank you mr you mr fitzgerald you have time remaining relatively recent graphic advertisements and what these show is a diet dr pepper can being sliced open and it's a piece of cake inside and what it says is nothing diet about it and the point of this advertisement is this taste just as good as bad food for you but it's not bad it's good food it's not going to it's like eating a cake except you're not going to gain weight and that's the very premise of our lawsuit is that that's wrong not but i to also make a distinction here we sort of allege two things number one that it can cause weight gain but number two also that it just does not help in healthy weight management so what people expect is that diet soda like water is an oculus as to if i drink it because it has no calories it's not going to make me gain weight maybe i won't lose weight but it's definitely not going to make me gain weight and if there's evidence here that it may make people gain weight then that then that's a misimpression and the survey that we offered actually had seventy five percent of people in the bucket of either think it's going to lose weight or think it's going to at least do no harm it's going to at least help you not gain weight as a seventy five percent of people the district court rejected the survey because i found that we didn't have other evidence of plausibility but i would argue that it wasn't at liberty to reject the results of the survey and that decision decision was an error and one other thing i'd like to point out that i didn't get a chance to earlier is that we have an omission claim based on twenty one c f r section one point two one it's paragraphs sixty three and sixty four of our rd amended complaint and what that says is if you make a nutrient content claim like diet then you have to reveal facts that are material in light of regular consumption and this court recently upheld a claim based on that statute and i think that the only way dr pepper moved to dismiss that was on the basis of preemption the court found there was no preemption but it sort of didn't rule otherwise and it didn't acknowledge that it was a separate claim and it sort of i think threw the baby out of the bathwater in that case i think at least that omission can and should be reversed can i ask most of your claims or maybe all of your claim sounded fraud is that right and does that affect how we because fraud is judged at a higher pleading standard would it be different if you had claims that didn't sound in fraud for the about being misleading so it probably does sound for and so just to sort of crystallize the issues here what i want to say is this is at the pleading stage at the pleading stage the standards are liberal this court has a long history of saying that we  in rare circumstances those rare circumstances tend to be where the advertisement and south makes it impossible for the for the person to have been misled such as where it disclaims or explains the the in the issue and that's not the case here i would argue that the whole import of diet and zero calories to people as i can drink this without having any negative effects on on my weight or metabolic health and the science shows that's clearly not the case at least there's enough science that we've planned to to bring us into expert testimony to see if this thing to see what these claims bear out but i think you know our survey shows very clearly that people interpret diet in this way there's a long advertising history here we talked about how in our studies all the scientists in the study sort of start  their introduce their studies with the idea that diet sodas have long been advertised as you know to help with way and so bottom line is i think given everything we played here at this stage if all