start four cases on for a minute today first case number two thousand and ten one two one one arco foods international against the united states  well the plain meaning of the phrase would include nearly anything with customs has already determined that there is a minimum threshold of what you know they have but do you think that the you're arguing right off the bat that this is a plain meaning articles of milk or cream and i'm having a hard time seeing why that includes something that has one half of one percent milk cream or do you think that there is a plain meaning that cuts off at five percent use of our customs has interpreted i know customs is interpreted i'm asking you about your plain meaning argument so before you even get to customs because that doesn't have anything to do with plain plain meaning as an independent ground that you're arguing where meaning of articles of milk or cream that tells me that five percent cut off or something less let's say than ten percent is still an article of milk or cream is rather less you're saying that something that has even a very small amount of milk and cream such as one half of one percent is an article of milk or cream and that's why i'm asking is that your position you're sort of that is our position ok the definition of is a very broad definition of pancake mix for example that has in your plain meaning argument with a pancake mix that had some small component of the whole of dr not be an article of milk with cream yes your honor based on a play me second the lower court must be reversed because is uncontested that memory is a frozen desert product similar inconsistency in matter of consumption to ice cream therefore the court probably classify mellor in under heavy twenty one zero five which encompasses ice cream and other  so this would be an article flavoring as well because it has a higher percentage of well look we're dealing with a terror for a quarter provision that has to do with milk so we're really focusing on the on the milk aspect of the product when you're determining whether it is an article of milk  five percent well we might just assume that we're not what then would be your suggestion and then what tests ought to apply to determine if something is an article in terms of male rain in addition to of the robot agrees at least with respect to memory is whether milk is required to make the product and here clearly memory again and maybe the standard you think should be any product that requires milk as one of its ingredients should be considered article of well yes especially oa and in terms of goods that you require milk yes that well your to say it requires milk from your answer i gather that all that the requirement   there's a reference to mixtures containing over sixteen percent milk solids by weight and it was not clear to me from the language of that know what reference what the mixtures that are reference regulation to sell it in the united states it certainly doesn't give melamine it's essential character it's they add milk powder into the blend with all the other ingredients when you said it didn't have it at that time they had it before it comes into the u s crackly but testified that in the united states someone in texas created what they call now irene by substituting vegetable fat for the milk fat that was used in ice cream that's what makes it essentially very different so what i'd like to point out too is that their own expert says that in response to a question at a deposition he was asked so are you assuming that any article of food that has a little more than five percent of milk solid boots and i ask you about additional no one sure because when i read additional note one i was surprised when it said article of milk and then presents the accept white chocolate we never thought white chocolate was an article of milk but obviously the definition of article milk is meant to be heating the broad so broad in fact they felt it necessary to tell us they were accepting white chocolate i don't know how that was arrived at it would i don't think so but that's that's a very good question and it plainly put if you agree that plain meaning should be the standard then maybe i should just walk out of here because it does have milk in it but if you believe that there should be a higher standard for discerning whether or not this service protection it has a quota provision if it's not brought in with under the quota provision you pay more right so if the intention is to protect the milk industry let's take a look at whether or not this really is part of the industry in the united states that's meant to be protected and their own expert couldn't identify a single manufacturer of melamine in the united states so what are we really protecting in the manufacture of malory and testified that they don't even have nope in the philippines they have to import the powder in order to make the the product that's being sold to the united states that should melamine is not an article of milk or cream it's only added so that it can meet the regulations to be sold here in the united states now customs already has ruled in a headquarters ruling in two thousand and two they think will see food page one hundred forty three of the record headquarters ruling number nine six five seven seven one didn't the tober seventeen thousand to return a pitch one forty five of that decision of the record thanks in the first full actually spent very little time on this people to think actually i don't have a list of the trial level everyone agreed at the trial level that we stop at articles of milk or cream because the rest of it doesn't apply well i'm sure it doesn't apply but what i'm looking for is some guidance as to whether the reference to sixteen percent tells us something about whether five percent is a magic number of whether it tells us something other than that five percent is a magic and that's a good question again i don't know the legislat history that went into this additional us know that's a good question well that the real questions are is this saying that if something has fifteen percent of milk or something it falls into that this category of mixtures that notwithstanding that it has more than five percent it is not a dairy product within the meaning of dairy products described in addition of us no one right i think they must have had something in mind when the car and i don't know what it is question perhaps it doesn't have significance then in any event it's a good question but i think it's pretty clear that customs has already ruled that we'll see food supplies they don't want to apply it in this case because then they don't get to category and that is other it does make a difference for my clients is there a need for us if we were to agree with you to clarify this will that we adopt or propel the test foods or otherwise is there a need do you believe for that or is this a unique and i don't individual case is there is there and i'm wondering you know if you were to prevail is there a need for presidential pinion in your mind are there lots of other instances where this is coming up or i believe this is going to come up again and there's very there's very little precedent in this area and be helpful if you to define it but i don't think you need to go further and what the just john to we believe that considering all these elements none of them are met so you don't pass the test i don't think you need to be more restrictive than that or proud of in that it is time to make a decision what does it mean for something to be an essential read malory right the fact that it doesn't have milk fence makes it not ice cream the fact that it has vegetable oil or fancy animals that instead makes it the essential ingredient that oil or well all these things are required by by regulation but that's necessarily mean that that makes that one ingredient essential and what i'm saying is that i think that the that's part of it i mean but we'll see food is looking at a number of things because what gives it its essential character is the fact that it's using animal fat rather than milk fat but they're looking at other things as well because i don't want to rely on just one factor alone i think the court is trying to get everything that's relevant right so they're looking at what's the article of chief value is its chief identifying characteristic if you will but the court disagreed and we will settle with twenty one of the five is what we did here so but what gives each flavor of miller mean it's central characteristic is the flavor i mean mel arenas milliron because of how m that but that's a good question too and so what we're looking at is we're looking at a flavoring that's right focused on that right it's a good question i'm it does come to mind and here's a good point to make i think that's an excellent point the fact that you had a flavoring to a base that's essential for making mel arraign doesn't change the essential characteristic of memory and being as i described it you're going to add a flavor that might also think that the trial court was trying to make and i think it is a relevant point is are we going to make decisions about each flavor of melamine based on whether or not a flavored ingredient raises the threshold whether it's an article in the brain cream which is a much broader category such a thing would not if it had fifteen percent it would not be an article of milk or cream if because what's the point of saying that it's not covered if it's less than fifteen if it's already covered by an earlier provision of the same not you understand the question i do want to push i don't know exactly why they have structured this way but presumably they intend to exclude something that has fifty percent that falls within the term mixture but contains fifteen percent not that that's what it appears so something that is a mixture that has more than five but less than sixteen would be not an article of milk or cream it appears th