ink which has profited at the expense of consumers through the deceptive design and labeling of its sugar lip balm product the district court on the basis of iranians and inappropriate factual findings dismissed plaintiff's claims without leave to a man now it's important in this case to distinguish between plaintiff's labeling claims and her design claims because entirely different legal standards apply to each the legal standards governing plaintiff's design claims have nothing to do with safe harbor or preemption plaintiff's design claims are simply that the design of the product at issue here deceives consumers into throwing away the product before they're actually out of product while fully a quarter of the product remains concealed within and i know you've used the word concealed so if you get down i don't i don't i don't use this product but i do use a look ball and when i get down to the bottom of the of the tube that cut off point the place where the whatever we're calling that place without with a razor blade cuts off the i can see that there's more product in there  now if i want to dig with a fingernail file or or something else i can act i can access it it's not concealed it's obvious now you used the word concealed is the product concealed in this tube if so i didn't understand this argument from or from from either the pictures or the description in your brain your brakes are compliant your honor consumers can see the surface of what remains but a reasonable consumer would not assume that that surface covers a quarter of the product below a reasonable consumer me why not because reasonable consumers would assume that once they have advanced the product as far as it will go using my screw mechanism at the bottom of the product and they have ceased to be able to apply it that there is nothing i mean has fresh put more product below that cutoff line than there is by percentage than there is in other lipsticks and lip balms my understanding is your honor yes your understanding it is alleging your complaint is there anything that s and but there are certain products but i do use and i don't know of any that don't have product below the flush caught on i think that the question of how many of them have a quarter of the product all of the fuss flushed out about what reason consumers would expect ok well that was that was my question counsel and i didn't get a straight answer so i think you allege that about twenty five percent was below the flush cut ok and that is excessive all it's not going to it's not concealed in that sense it hasn't been it has been put below that the cap someplace or buried elsewhere in the in the container it's at least it's a it's they at least know that there are some percentage of product below there now is the twenty five is does does fresh put more than just the twenty five percent represent something more than burt's bees puts in it's little ball or revlon puts in its lipsticks my understanding that it is that it is your honor and is that alleging your complaint i don't know if it's alleged in our complaint that there is more below the flush ok but this is a motion to dismiss level so if it hasn't been alleged in your complaint then that's not something i would be before the district court or before this court right that's right however the question of whether reasonable consumers would expect for this particular product that what's below the flood the question i guess not i guess counsel i'm asking is haven't you aren't you arguing that making arguments now that you haven't alleged in your complaint now we have alleged in our complaint that consumers are not aware of how much is bill of rights but do but you're not making an argument that there is more hidden there than there is in comparable products where consumers might expect to find product below the flush got by you know for years of years of usage no i don't think that's the primary chapstick no it is not your own except that in the sense that i think judge bybee is suggesting that you know you can look to common experience to know that everybody knows or something bo i cut right there every reasonable consumer should know that i think the question of what reasonable consumers know about what is below let's turn a matter of common practice in common knowledge i think the question of how much what is common practice matters a great deal to our kings the relative about oh it's another word to say if it's not more than chapstick you don't have a case no your honor the relative amount as compared to other products is not relevant to our case what matters is that it's there and it consumers reach the end here based on all indications they have the fact that they twisted at the end the fact they're scraping against plastic and they ate the fact that all they can see is the surface of what remains and they would throw it away whether reasonable consumer would use a toothpick to plumb the depths of what remains i think is a factual question and i personally wouldn't do that with a tube of chapstick or if i had this product i wouldn't do it either but doesn't the question of what's below does not go to your labeling claim rather than your design claim no your honor that design claim is that the design of the lip balm deceives consumers into throwing away while a quarter of the product is concealed within the two so the fact that a quarter of it remains within the two below that flush  is the basis of the design claim because consumers throw it away while the quarter remains in your opinion that's a factual question rather than legal question that's correct the question in your view is that they must be deceiv because there's something below the line is that what is curious about what the deception is that's all you can tell me what the deception is that the way this since there is a quarter of the product included below that flush line consumers believe that they're out of product because they've twisted to the end they've used down to the flush cost consumers don't know that a quarter remains below that flush cut and so they throw the product away well doesn't the market take care of that th is no form your honor i primary position on those is that the district court ignored allegations that we did make however to the extent that additional allegations regarding the extent of what reasonable consumers would be aware of  not typically suitable for resolution on a motion to dismiss except in very rare circumstances and this is not one of those circumstances now this question this factual finding that the district court made here that the reasonable consumer could not be deceived was premised upon sat upon a second factual finding the district court made that was also incorrect but couldn't a court of appeals see that as a conclusion not a factual finding the facts were not in dispute facts were in dispute your honor that the question of whether reasonable consumer would be aware of what remained within the tube was a fact that was alleged and disregard by the more i think that it was a certain amount of weighing of the evidence in determining by the district court what a reasonable consumer but it wasn't disputed i don't think at least on this record is not disputed there's a there's a container there's a portion below which they have some contents that i don't think you tell me what your honor the facts that were in dispute are what a reasonable consumer would make of those facts you just as i would imagine you isn't that a conclusion no your honor the facts you describe which were the amount that were below the flush cut the amount above the flush cut those those facts are not in the amount about the amount below are not in dispute however the question of what a reasonable consumer would make of those facts whether a reasonable consumer would believe would understand from what they're seeing that a quarter of the product remains below the flush cut that is in dispute as far as i know defendant has not acknowledged that reason consumers are unaware of what remains of a flush cut why is this a design question sort of a labeling question i thought that they i thought the amount below the flush cut had to go into your labeling question but is that the they had failed to put down how much was usable on the label i thought that the the design question went to the fact that we had this big clam shell in the white in the bottom of the tube in an oversized package that made you think you were getting a whole bunch of product that you weren't getting so your honor the amount that's below that flush cut is relevant to the design claim and the labeling claim but not what i would describe as the packaging claims so what you describe with the weight that oversized box and so forth i would describe as the packaging claims which have to do with the box the weight at the bottom of the container that is on claims have to do with the operation of this of this problem how a consumer turns the bottom of the product to advance the material life if this if this question if this question we were allowed to this to go forward would the kinds of findings of fact then have to involve engineers and discussions of how much paraffin was in here  and whether you can get a cylindrical stack of of live ball took just to stand up without without having some product on the bottom to anchor it i mean those are all those questions would have to come in here not necessarily your honor because there are multiple different ways that defendant could resolve this deception you could argue they could do it without having as much material in there to anchor anchor ok so we could actually we could have less than the as they put too much material in there to anchor it you could argue that you could also argue they could resolve the deception including the full amount that's above the flush cut the amount that's represented on the label including that full amount above the flush cut and then the material below the flush cut which they argue is an anchor to keep this from falling out with that run a regulations no your honor under seven a one point one three the net quantity state assumes that something will be excluded and what should be excluded here is material that consumers do not get to use we allege they do not however the definition of cosmetic which is listed at twenty one the case was against you and thank you cases go the other way right now there are no cases as far as i'm aware that define net quantity to include material that cannot be used that would be contrary to the definition of cosmetic at twenty one u s c three twenty one i which indicates that a cosmetic is a material that is intended to be applied to the human body we've alleged here that this was not included below the flush cut to be applied to humans  as a result if it wasn't intended to be applied in human body it was either there because fresh wanted to profit more by increasing its turnover or if it was there to serve as an anchor in either case it wasn't included to be applied to the human body and should be excluded as other material counsel i know that we've taken you down to the bottom of your time i assume that you would hope to reserve some time for for a reply well before you sit down would you please address the preemption question yes your honor so the reason why we argue that there is no preemption here reason it does not comply is that as i stated is that includes material that consumers do not get to use the reason why that's a violation is that if it's a net quantity something must be excluded what should be excluded here is material that isn't intended to be you folks can you cite me to the particular provision of the regulations that this violates i would argue seventy one point one three a and seventy one point one three g which state what should be included in that quantity statement as well as twenty one u s c three twenty one i which defines a cosmetic the quantity of cosmetic in the package is g e does it say anything there about accessible or reasonably available or what does it say it's as it should be an accurate statement of the net quantity of the cosmetic exclusive wrappings and other material packed there with no you added some words there that weren't there counsel you have the word net oh that's not you that's not in g that appears in seven zero one point one three eight right the net of what we would argue violating the regulation that's that's that's very different from a question of preemption i disagree your honor the reason is that under and other supreme court precedent regarding preemption the question of whether federal law in particular this statute which was address announced yanna what or whether federal law preempts state law claims depends upon whether a plaintiff is is alleging what are called parallel requirements and we are alleging here that the state law claims are parallel bring california claims you didn't bring any any straight up federal violations we did not hear why would you if you thought that i violated seven a one point one three a why would she bring that claim as well your honor with the enforcement authority for seven a one point one three is reserved for the f d a as i'm as i understand it the state law claims are the way that we can seek damages so the federal the federal claim that you claim is parallel to the state claim is one that can only be enforced by the f d a but you now want us to come in and impose additional requirements by virtue of california law that we couldn't get under federal law so i correct you know your honor we're not seeking to impose additional requirements we're saying that this is not an additional requirement because it's contained within the regulation it's just a different remedy you're seeking that's right and that's permissible pursuant to supreme court precedent on this faith versus dagger sciences and other cases if if we ultimately agreed with your claim and  and you won in that prevailed in the district court california pretty much dictate the rest of the market would your i'm not sure if that's the case or not i don't know whether other state law claims would be consistent with with california law and so i assume that most where there really wouldn't really wouldn't matter wouldn't would the manufacturer just simply manufacture everything to make conform to come from california standards and market it everyplace else and if it did in that resolve that is that seen here i don't think that would be a bad result alright i will a afternoon your arms stephen smart from winston and strong on behalf of defendant appellee fresh in the first thing i'd like to to address quickly is the standard of review obviously this is  abandoned no set of facts standards and that that obviously is not the correct standard after tuam baunach leah's this court has recognized so we point that out and i think it's important to point out here because  even from the argument and there was a lot of questioning from the panel it can be demonstrated in this case the theories here tend to converge and merge and swim around and so every time opponent comes up into an obstacle with particular legal claim they try to shift the focus to a different legal claim to just struck from that that happened at the argument on the motion to dismiss and i think that the lower court properly reviewed and applied the principles to the discrete that the discrete claims that are being made here to find that it should be dismissed and it should be dismissed on the merits at this point i would like to point out that it was the amended complaint that was dismissed all of these issues were raised and there was a meet and confer and there was leave granted to file an amended complaint and so plain opportunity to address in the pleading the arguments that we are presenting here today those are the same arguments that we have presented in the meet and confer that led to the amended complaint and during the hearing and in the excuse me the briefing i don't think there was a request for leave to plead additional facts plaintiff chose to rest on the facts as pleaded with that i think there are a couple of facts and based on the questioning they're very clear to the court that are not in question first of all of the claims the the claims for false advertising the fresh sugar lip treatment states that the net quantity is four point three grams so to start with there was some discussion of what is in that quantity mean and we heard again for the first time here today not in the papers not in the record below this argument that nat quantities somehow means there's a quantity of product and then there's something else that's the net quantity of product that's nowhere in the record least it's a new argument but not quantity simply means net of everything else net of the packaging that would accompany it so we're talking about the weight of the product so when we talk about net quantity o the weight of the product and the reason that's important we take this particular product as an example lip balm at the court as mentioned a couple of brands of lip balm and i'm not surprising because before i got in this case i was limited in my knowledge of lip balms to similar brands that were mention chaps that are bird species these are plastic containers their package completely differently this is package sugar lip treatment  plaque packaged in a metal canister like a high end lipstick it's sold in a higher end store and as alleged in the complaint it sold for twenty five dollars up to twenty five dollars  answer the panel's question about would discharge the dynamic would california then california state law be dictating federally how the product would be sold i would posit not only that but it would be limiting the opportunities of retailers to do high end packaging because the types of products that were alleged to be can parable are sold in plastic containers and a comparison of the weights are the weight of those plastic containers first weights of high end containers i wanted to address that again the specific facts that are not in dispute the  and the section twenty one c f r seventeen zero one thirteen a and g as the panel has discussed specifically require the statement of the net quantity of the product on the package corresponding california state statute require the labeling of not quantity on the package that's the requirement that's imposed on the retailer here freshening by the federal you your honour's have already recognized there's no dispute that whatever the amount above the flush cut is and we are accepting the allegations alleged in the complaint as true so we are not challenging  the allegations about twenty five percent being a lot below but we're also not conceding that but accepting that as true as as your honour's have already indicated once you get to the bottom of the flush it is apparent visible that there is more product below there whether it's a lipstick tube whether it's deodorant ors lower court use the example of of toothpaste and in  did the the plaintiff argue that the twenty five percent was larger than than comparable products i believe at the hearing i have and i did not have a chance to go back through that trial transcript i believe excuse me the hearing transcript i believe at the hearing they made allegations to that effect the fact is they we didn't go down that road because those would be factual allegations and i don't think i was trying to figure out whether they pled it and i don't recall if it's in the complaint itself i believe they may have raised that argument orally at the hearing it's not it's not grams as alleged in the complaint what weighs more than the product itself it weighs more than the four point three grams in the product itself and that's why there's something in the allegations or somewhere in the record as to what the of that weight is no your honor and as a matter of fact in the arguments one of the things we argue one of the things we argued in the lower court in the in our motion to dismiss and one of the things we argued again in in the brief is that they sit upright and not be knocked over easily and it's tom in the lipstick industry essentially what we have here is the first in many cases if this is allowed against every type of lipstick container that she used but we don't need to go into that factual issue would be because i just think that it's a common practice in the loop that industry it in paragraph in page three of their report they said everybody we don't know the whole allegation here is the only way you can apply this there allegation is the only way you can apply this is by rubbing the bomb directly pressing the stick to your lips that's not true and it's the court has already recognised it's visible and accessible to the consumer by through other methods of variety of other methods which are also well known in page on page three of the reply brief they say except in that that's true they don't except that everybody would know that there is a product below and how much product below or not is there for the consumer to discover or not at the consumers choice and what i'm saying is that yes it would require a complete redesign of this product and every other lipstick because it would require that something else would have to hold the lipstick or lip balms live in place or the way right and you could in a supplemental labeling it say something like well you know this product does weigh four point three grand prix fact only two point three are acceptable you could say that right be stated and here no no no no wait a minute now that may be you know true as far as the preemption argument goes but say well plays cases saying well even though it complies with the f d a net weight regulations it's still a deceptive because it doesn't tell you how much product is usable and the defendant can easily let the consumer first the argument is premised on a fact that it's false by virtue of the allegations pleaded in the complaint and that is that there's any part of the product that's concealed or not usable so it it conclusion regarding the fact the fact is that there as alleged the fact is there's one gram below the flush cut and the fact is that that is visible to the consumer when they get to the end whether that's to the ordinary consumer reasonable consumer you know the only accessible portion is down to the down to the top of the of a call that the plug  two grams of this product is not a reason we custom will you have to be a contortionist to get to it or something like that it's the only thing i would say in response to that is that that look that if if this lawsuit imposed that as a requirement it would be a requirement in addition to that not weight quantity that is that is imposed by the regulation that's a supplemental label it is a smoke  question wouldn't you have to be a magician to know what was reasonably acceptable if you look and the lip blood and you know there's a product beneath that john jones might get a toothpick and take it everybody concedes that anything below the lip and is not reasonably accessible because the number of ways to excess it would vary with the uses there would be and go buy another the other two but you won't require to do either one of the two now i'm not know that that's the answer but i expected you to go in that direction as you would tempting the answer my brother's questions and  exactly right and i would expect you to say that i'm glad i met at least one of your two expectation if there are no other questions then thank you thank you thank you  long time made that point because i want you to rebut your have to do it at the beginning but at some point do what i can your honor i have just three points to make here the first is in the complaint we do allege that fresh is an throw it away more often they buy it more often and they increase their sales but what makes pressure an outlier we like that they are not liar because they include more we don't let i'm sorry we allege they're an outlier because of how much they include above the flush cut and we're prepared to amend to allege that they're an outlier also with the percentage below the flush cut but with the district court found in this case is that fresh has no profit motive question that you raise your honor regarding whether individuals can access what's below the flush cut i think as you described there might be ways there certainly conceivably ways that might be simple and readily accessible ways that's what that if is that it's not it's not so right doesn't matter if you've got to go get some kind of device to squeeze through with that but it's readily accessible isn't it but readily accessible i think the answer is no because consumers are on aware so the question in a way of what i'm aware that there's something left in the budget there's a significant amount of material remaining below and they see all they can see is the surface of what remain a reasonable consumer would take that to mean that there is a superficial layer not that that surface finds a quarter of the state amount of the product that's what a reasonable can consumer would assume i personally would look at that and think that that's what a reasonable consumer would assume and the least it's a factual question about what a reasonable consumer would understand to be below that superficial layer that they can see we that a reasonable consumer would not be aware that there was a significant amount of product remaining and therefore would never think to attempt any of the methods you describe either thing or or toothpick or anything like that as a result it is entirely possible for complete of the oral argument calendar for the day and we