trader joe's branded fresh package chicken products the plaintiff here alleges that defendants from label statement that the products contain a maximum of five percent retain water is false and misleading and violation of california's consumer protection  regulatory agencies would require in cities to submit their protocols right in use you know if you don't tell people to submit their protocol and how they take the temperature you just ask them like is it you know tell me the temperature and so i understand it's  regulated but it's actually regulated by saying tell us the protocol you're going to use and will we will have the opportunity to tell you you can or can't use it so i i really do want to know the answer is it can there be deferred you know if i  different ways to measure how much retain water since that's a good question your honor i believe that it is more akin to temperature it's a certain percentage and i believe there is different ways to measure retain water that question i assume that there would be one protocol that the manufacturer would have kind of a critical piece kind of kind of the critical question i feel like in this case because i can't tell whether or joe's retain water protocol we never got into the discovery phase of this case because the case was dismissed early on a motion for judgment on the pleadings but you know that i think you don't know whether it's to be clear you don't know whether or not you're using this the same same water for a call that that trader joe's says that's correct but i think that the complaint alleges that since we did food laboratory testing in the testing show that there's more retained water that was on the label i think that you is trader joe's retained water protocol that they presumably submitted to the agency is that public or something is that something that we could all go see or something can get from the agency or is that something that you could only get through discover yes that's definitely a possibility you know there'd be a chance of the agency might object based on you know confidentiality concerns the trader joe's has but that would definitely be an option  difficulty i'm having is you've got some testing n g s and have some protocol presumably i mean i've got to imagine the protocol matters or why in the world and c a g have a whole section of the regulations that are about protocol right and so i got imagine protocol matters and so you have your testing and you follow it some protocol but it sounds like you can't tell us that that protocol is is the same one trader joes did a how do we know or how does anybody know at this point whether or not the protocol is what makes the difference you know what you're protocol that you follow it gives you ten percent and therefore will give them five percent yeah i think that correct but at the motion for judgment on the pleading stage all that the difference that you're getting is because of the protocol by in fact the difference then is there protocols been accepted by the a n c the only way you could win is if we were to say well california law allows you're also requires that your depending on five percent more than five percent retained water under a certain protocol i guess i think that's what you're saying it would be you know it would have more than five percent of your protocol assuming you're not you're being honest which i assume your honesty your client is following not the protocol that they've submitted and that the agency accepted i want to necessarily agree with that i think that you know the agency does it i review the  retained water protocol so that analyze any of the data they're required to do is submit it to the agency never never actually approved the protocol and the the regulations require that they make statements that are false and misleading so it says that they have to demonstrate to fs i asked now it's i get your point that it may be that the way they demonstrated it they said it in and then and their regulatory guide fs and said i wrote this is circular file i don't know what they do with it but defendant to place a true change water claim upon its products for sale in interstate commerce we think that's just speculation something that's you know not alleged in the complaint and it's contrary to what the regulations say sixty six  version i've been talking about which is the retain water for all provision and i hear your point that if you read this entire provision and retain water like you you we could have sort of academic argument about whether or not the agency is approving the retain water protocol or whether they are just sort of accepting it and then they obviously have the authority to disapprove right my face so it's more than that where they think affirmative action or where they don't  balance i guess i think a challenge is assuming it's the latter which is the way i read it and they don't they don't necessarily approve it they don't send a letter necessarily approving they just reserve for themselves the ability to disapprove it within thirty days what is your it you'd be adding sort of an affirmative thing on top of that that they also have to meet your testing protocol i don't think that's necessarily correct your honor since the f s  not of review the data or actually approve the statements you know culture manufacturers have to ensure that the statements are not false and misleading and so i think this case is really into the base versus the passed on the accuracy of the statements on their label they never actually read the label for safety or effect efficacy and so the generic generic approval process in this case with respect to retain water statements is very similar to the process that w that warranty on its product and that's exactly where the legend here it's been in is free to choose the retained water percentage but it has to be true and not false and misleading and so are allegations that they put the five that the labels are enough also misleading and that they are pre approved so on that ground alone these claims are preempted because those retain water statements are part of that pre approval including the water content number two that the plaintiffs were attempting to test the water content by their own methodology which was at odds with the regulatory methodology that me let me say this in the context of poultry products poultry products like the products are a little bit different from other food products because in the case of poultry products and meat products pre approval in other areas where the supreme court has said pre approval mean means preemption including metron it to including jones versus hacking so that points very clear and the  rather claimed i suppose could be where you had the same protocol there's only one protocol however you want to say and and trader joe's with lying or something akin to lying about they're getting a different we're getting a different number than them you know there are monitors and forty two degrees and we're getting forty eight degrees and it's like temperature right there and i'm trying to get it i'm trying to get it trying to figure out which one of those results is they are trying to claim you claims are preempting as the district court found the reason there are preempted is because in the st place using the wrong protocol is imposing requirements in addition to or different from of testing these products after you buy them at the supermarket would stand the federal goal of uniformity in labeling and the federal labeling and enforcement schemes on their dea it doesn't the regulation requires that they do it and the regulation in trust the agency which is the expert agency that's supposed to insure who in this country  federal agency the additional requirements that you know nd guessing by by states and plaintiffs be on the federal scheme and that's exactly what this court the district court found and what they are saying on their label or are you saying that it's has this much retained water it's had this much retain water in it and it's more than what they're saying and we don't care about their protocol are you saying  honor i think it's more akin to the st one they do after you know that i mean i mean so if you're if your thing is that they're lying that their protocol must be kicking out a different number what evidence do you have that you don't even know what they're part of our lives and what evidence  mine well we have the laboratory tests and i think a reasonable inference would show that since the laboratory testing is higher they must not be complying with their protocol and we think that we should at least be granted leave to