of the table lisa whitehead trina carolyn nix who shoot we're here today in this morning about a product mislabeling case specifically aloe vera product mislabeling cases involving primarily for this court's consideration to products for the earth and a walgreen's product as i know this court is aware because this court has issued opinions concerning these types of cases under and if my southern accent pronounces it correctly this court found that cases just like this are primarily suited for consideration by the jury and not dismissed on a motion case was involving coffee pods and whether the the representations with respect to those coffee pods and whether they were freshly ground versus instant the court issued its ruling what i was intending to say was respectfully your honor that this case falls in line with the reasoning of the suit shanika case with respect to why i should go to a jury as opposed to being concluded as a matter of law that a reasonable consumer could not be misled so ensuite chanakya and i don't know how to pronounce it anymore the only but not in that case the plaintiffs offered evidence of not just one but several consumer surveys indicating how reasonable consumers understood the pro the in the label we don't have any such evidence here well there is some evidence your honor and i can explain how and in this case respectfully was not the point to where such evidence summary judgment done summary judgment correct summary judgment but it was before the class certification why i have and so you made the point in your brief i have no idea why well the point is honor we have at we have not considered can complete it merits discovery with respect to summary judgment i understand your honor it is as we have said several times the put up or shut up time i understand ever evidence you record about how much gas a man and is needed for a therapeutic effect yes that is contained in dr edwards report and we've outlined it into a therapeutic effect was beyond the scope of his expertise  i respectfully what he said was that there has to be five percent dry weight as a man and in order for there to be at a level that would comprise a therapeutic effect and even dr kelly defend its own expert said he wouldn't use the adulterated process or products in this case for treatment of sunburn let me try this again ok there's been a lot of medical research what you believe yes your honor i'm asking whether the research addresses the issue and then i'd like you to point me to the international alow science council the eye of the s c it's not a government it's not a government led by god i don't care whether something is government but i care what is in the published research not trade groups i want to know what is scientifically known about this thing what is scientifically known about as a manager is is that it does it certain levels provide therapeutic benefit potentially with respect to sunburn good jew and that sort of thing look i'm i'm asking a very particular question and i'm i'm hearing about the scientific literature what in that literature tells us what concentration is needed for a therapeutic effect your honor i bet think asking me to prove a negative going to treat me as there are books i'm not asking anybody to prove a negative right there is often medical research about products and one of the critical questions in that research is what concentration is need this morning i had dental surgery last r t this morning to promote healing i took a product that is zero point zero one two percent active ingr the medical profession thinks that that's quite enough for a therapeutic effect that's because research i'm trying to figure out whether there is similar research about how some men and what we know about well you're right number one the difference between what not asking about whether someone has approved something ok i'm asking about the state of medical research are there are studies by people who know what they're talking about who address the question what concentration is needed for a therapeutic benefit the answer is we believe so yes if you're asking me why wants a study should i go and read what is your best i'm waiting for you to cite something for me to go read and so far you haven't done it is there some concrete study you wish me to go read that represents the best scientific evidence your honor i don't have what i believe you're looking for ok thank you schoolman do you have did you obtain through discovery any surveys that the defendants did concerning their labeling marketing efforts etc we  did your honors with respect to what the thirty six witness dr quitters mr who say where it is said with respect to the consumer complaints that they were aware of concerning the labeling and mislabeling of the product those sorts of usually so merits discovery was done st no your honor we were concerned concerned in continuing with class or discovery which is not the full panoply of everything that we filed at the same time we were given deadlines to file or class certain motions which we also filed and then the defended concurrently filed a motion for summary judgment we were given deadlines to respond to their motion and they were given deadlines to respond to our class certain motion being fully briefed ok can i ask you also more specifically i'm looking in through the defense put the the labels in their briefs  reasonably legible and colorful fashion looking at the walgreen's product the private label product the issuer i don't see any claims there to purity or one hundred percent anything what's the problem with that label and we pointed that out  it's not the same as the food here the problem with the walgreens label is the quality descriptors that they give that it's powerful relief for sunburn and he'll drive skin shafeeq itching and on and on as the court can see and read on the label that's the problem there is no such evidence to support that any therapy vehicle eval of assa managed could do any of those things that's that's the basis of the that's so that's where you're arguing that if you bring the suit it's up to the defense to come forward with evidence to vent to to support the claims made on the label right that's absolutely right you know that they're that put another way because  where i think the trial court sort of turned it on its head if i'm the marketer and a distributor and i'm selling it and putting a product into the stream of commerce and i'm going to make a profit off that product i should know if the product has the things in which i'm making the representations that's not the consumers i mean how would a consumer be able to determine when you walk into walgreens and it's now that i read something the federal trade commission might normally the plaintiff has the burden of production and persuasion but really you're asserting that this category of cases is different you can't support that assertion by pointing to what the defendants did or didn't do you have to support doubt assertion by pointing to a statute or regulation or a decision this quarter the supreme court so are there such statutes regulations were  nd amended complaint i'm asking you a question right here at oral argument in the court of appeals please give me an answer rather than asking me to go read some other document yes you're on the answer is it well it outlines for the plaintiffs what it is we have to prove under the act that's substantive where george hamilton and i are now talking about who has the burdens the plaintiff has the burden of proof you preservatives and stabilizers was acceptable to plants and something that they expected they never expected aloe squeeze from a plant directly into the bottle their testimony was that they expected something to have been done to it to make it shelf stable so on the basis honor in the sense that the majority of the plaintiffs testified that it worked for them they purchase multiple bottles of it yes but unfortunately we also know that people who wear copper bracelets are happy to give testimon arthritis right there there are a lot of people who will say things that are not medically true is there any medical reason this is the same question i asked m medical reason to believe that the concentration of that some men in this product is their reputed there is no evidence in the record or that we are aware that race managed provides a march is needed in any given motion or joel i didn't see discussions are your clients aware of any such questions or decisions or finding no you so you can apply it to your skin and determine whether it's cooling or c n n actually can't write that's the same point as copper bracelets thank you both believe that if they wear a copper grace it solves their arthritis and n the same area right or by wearing a copper bracelet that's why we court is interested in the science of this and not folk wisdom and you're right i know there's case the case was entirely different the place that the defendant in that case was passing are real coffee as into coffee and there were multiple consumer surveys as your honor pointed out that showed the defendants labels to individual claims correct so did all of the plaintiffs admit that in the depositions the it was admitted throughout briefing and it is a true is that the defendant's view that in essence the combination of an asterisk him and ingredients label conflicts essentially any problem with the product  i give you an example one hundred percent organic milk asterisk and then there's a list of some six sellable synthetic preservatives that are include added to the milk is it ok prominent letters on the front of the card one hundred percent organic milk but there's an asterisk and the asterix says see ingredient label on the back you look and there's a list that includes fifty six dollars syllable synthetic organic compounds district judge did not address in that opinion and which is i think the most obvious interpretation of that label well and in this case on page seven of our brief had a label with the phrase is actually a one hundred percent joe it's right right and you've got some plaintiffs who are saying that's not what i did that's not what i get when i look at the ingredient label that they expected to find those components using this product what do you think you can add to a label that says one hundred percent pure aloe vera gel what do you think you can add to that product and still claim it's one hundred percent pure squarely ways that we are not necessarily going to reverse the district court refund of this record simply because somebody failed to defend a particular subsidiary decision so let's let's assume the district judge was edwards had nothing to say about consumers interpret labels and he also didn't say that a product without taking her with the man and levels that he found is not so he adds nothing to the analysis even if you consider  a labeling case and so with respect to the labeling is it to a reasonable consumer misleading to say that a product is one hundred percent pure aloe vera  percent of the stuff in the bottle was a low water weapon which ninety percent is why do a lot of it then you would be saying that it would be fraudulent if you just took a leaf of a lawyer and said this is one hundred percent a lawyer you would be saying that's a fraudulent claim because most of the stuff in that leap is water right you're not making that claim here i just making the you're making a claim as i understand it that st there are binders and stabilizers that's two percent and nd in the processing asks a man and his last yes song we were not sure how much agree and that's where i need to know how much acid man and is needed further a pyrrhic effect and that's where i've would cite to the testimony of their own expert dr  he wouldn't use scientific question or scientific finding understood i thought maybe when you were seated you would perhaps do some research on the answers to my question yes and that's what we were discussing your honor just wanting to see if we  do it in a way that would answer the court's question but also keep the focus on the to the labeling claim of what if you say something's out of and you look at the federal regs which says you can't use a product name and be misleading or deceptive and have any ingredient sure if it's misleading and deceptive that's something in the ordinary or reasonable consumer to be misled by and that's a question for the jury that's all i was going to say  stabilisers things that make it possible to deliver those to the can do you have a good legal claim that it is misleading to put the word aspirin on the front of the bottle without prominently revealing that most of the stuff in each pill is not an active ingredient i think i would have a claim if the aspirin said one hundred percent sure as it just says aspirin no if it's just aspirin even though most of the pill is aspergillus if it's just aspirin your honor but here that's not the facts of the case respectfully it's one hundred percent pure pure being a statement of purity the other descriptors being a statement being statements of quality