if these court would like to reserve three minutes for rebuttal the f d a warnings must cover thirty percent of the two main sides are very cigar and pipe tobacco box and twenty percent of every cigar and pipe tobacco advertisement they come in a stark black and white format that makes the government the most prominent speaker upon each media the law has developed to make clear that these warnings violate the st amendment the supreme court's decision that serial institute and the burden is on the government the subgroup does doesn't this for all of the long lined up about central hudson and saw her everything else doesn't this case just come down to the government's selection of an area thirty percent as opposed to a smaller warning that you can see would be permissible yes your hon this this this case this part of the cigar association case is about the size of the warnings not the content and the content is being challenged below but in this posture the only the only issue is the size if that's all that's it issue doesn't the government get a certain amount of leeway in saying thirty as opposed to twenty five dollars supposed to twenty is supposed to be whatever the government the government has some discretion in this area but it also has a constitutional burden to satisfy and that burden is to show that the warnings extend no broader than the ice there i mean i understand that but you know i'm thinking of burson versus freeman which is a st amendment case applying strict scrutiny and the question is within how many feet of a polling area can a certain restriction be imposed and the spring court said if you're just picking that number the government has a lot of latitude and we're  not going to sort of apply strict scrutiny to the question of thirty versus twenty nine well your honor i i think in this particular case we have a different situation because because for the last eighteen years there has been a warning skiing in place for cigars imposed by the federal trade commission that seed covers somewhere between ten and fourteen percent of state one panel of each cigar box in forty eight percent of every cigar advertisement it covers today more than eighty percent of the industry at the time that the f t c warnings were were promulgated that covered ninety five percent of the cigars sold me eyes states and the agency did not properly deal was shifting from from that widespread system to this so this broader warning  circumstances we think that the burden is on the government to show that that less restrictive alternative would be adequate deserve the government's interest whatever that interest may be we can talk about that yeah i mean if it's if it's a unitary choice between the old f t c regime forty eight percent or the current regime thirty percent your argument has a lot of force i mean this is a much greater speech burden than the prior regime but if it's just stick it you know they have let's assume the agency has good reason for wanting to thirty is the right balance as opposed to twenty nine i do agree with your honor that it would be a different case if the agency were were choosing really the scope of the in size of the cigar warrants for the st time if were if there were not an existing regime that was available for study but that's not this case here here we have is a scheme that was in place for most of the industry that the most the industry already complies with fo which there would be no conversion costs for most of the industry in the agency said that we need to go in a different direction and an expanded warnings to cover thirty percent and congress in the family prevention statu and the purpose section of the starches is because of that expertise we're giving the f d a the primary regulatory authority in the writers and your argument that the that the f b i never exercise that that expertise to evaluate labels and their effect on consumer behavior that's exactly right your honor and as is is the discourse decision in r j reynolds vs the food and drug administration pointed the principal focus of the family smoking prevention tobacco control act was on how labels would reduce the use of tobacco as a result dischord identified as a key purpose and the opinion more that ri the statute is citing that very finding that that women when the congress was channeling that expertise through the agency it was focused on its ability to look directly at how these labels would reduce to objective was and the interests of the government was reducing the use of tobacco in that case of course that portion of r j reynolds i take it your argument is was never over rule by american  hard but but also rejected the interest in affectively communicating the health risks of of of cigarettes in that case as a freestanding substantial interest that can justify the compulsion of speech and can i ask you about that yes so that's from a part of our gee you're right also if the climb to applies outer and instead applied central hudson right yes your hand you don't have a dispute that souter as interpreted by the supreme court's most recent opinion is the one that governs this part of the rule correct well what we do contended insofar as the the warnings were expanded from from from ten to fourteen percent to thirty percent on packages and in those you know nothing that's not i had understood that was part of your claim of the undue burden which is part of the supreme court's explanation of what's out or a plot requires and what we previously said government in ensuring that consumers know whether or not a product will harm them is insufficient force out not not whether providing the information will make them stop simply the interest in making sure that they know that it will harm them yes upturned to your question and  that this court or this court an american meet held open the question of whether zod or requires a substantial state interest the type of interest that would qualify u to qualify under central hub like but the interest that was in the american meat is not different than the interest here the interest there was providing consumers with information about where they got it there was a suggestion that it might cause people to buy more american meat but there was no evidence in the record at all on that subject as judge randolph pointed out in the subsequent opinion  manufacturers so the on by position of this court is that you don't have to show you don't have to have as the purpose of stopping smoking is your allegation you have to have the that's not our position at all you are right we think a case absolutely could be made for or for warning skeen that would that would have the effect of reducing smoking cases just not the case that was made by the would be effective in reducing smoking but not a large one and it is it is it is quite possible that the agency could could build a case as a warning of some sort was needed to reduce smoking rates but that case wasn't built here again the agency made the strategic decision not to build a case that this warning scheme would reduce the use of cigars it disclaimed that interest but if you could assume for the moment contrary to your view assume for purposes of the argument that it is a permissible purpose for the government under zoller substantial enough whatever that means to provide information to the consumers about the dangers of a hazardous product and that alone is sufficient now they the government cites evidence that since two thousand and one  standing the warnings of f t c size that people still don't understand the dangers of cigars  no i don't believe that is right your honor right that is what the agency argues in this creature for this court but i i do not think that there is evidence of the mistreated record of that and in that regard the agency claims that consumers misperceive the or after two thousand and one and the supplemental table b shows that substantially more than fifty percent of cigar smokers think that their cigars might be less harmful than cigarettes that i will say than smoking cigarettes because of the way cigars are use and the number of you know some evidence that the premium cigars are we would smoke one point seven times a month so that's true isn't that that's absolutely right your honor if if if if you look at it the way cigars are used by most people who use them that is in particular premium cigars and your honor was right to point out that the past thirty demonstrates that median premiums  you agree maybe unconfuse i understood that you agreed that the warning labels are true and accurate that correct for relieving us of the size you are not disputing the truth the warning labels at this stage of the legation parties are not disputing the truth of the warning labels they are being disputed below but if this is a rampage far as we're concerned today they're true yes warning label three cigars are not a safe alternative to cigarettes correct that's what it says yes as well as a slice of people still believes since two thousand and one and notwithstanding the f t c warning label that cigars are a safe alternative to cigarettes that suggests that the warning label hasn't done its job respectfully we believe that the agency hasn't built a record for that well i'm going to just looking at  at your submissions supplemental table be path study how you have to leave out the premium cigars non premium cigars twenty seven point one percent smokers of non premium cigars so they might be less harmful than cigarettes twenty four point five percent of cigarillos smokers and twenty seven seven percent of filter cigar smokers all think the opposite of what you are conceding is true for purposes of this argument your honor that that is precisely why this rule needs to be remanded back to the agency because this is a study which the agency did not undertake they never  risky than cigarettes cigars are dangerous right the question that just going was posing are they is just as dangerous because of the method of usage whether premium or otherwise as smoking cigarettes and the answer to that which is the evidence that they're that they're just as dangerous i don't i don't see any evidence of that your honor you're correct that the warning number three does not match the data the judge garland deciding that they're going after two separate propositions and and nor does the date on which the agency relies because it gan the agency did not study misperceptions of and thirty seven enjoyed it and one of the major studies a study of cause to show the ninety three percent of college students did not think smoking cigars was less dangerous as one of the cigarettes so again this is one of these this is the this is the inquiry that the that the agency failed to undertake at page twenty nine thousand and sixty six dollars of the final rule it dealt with the format of the federal trade commission warnings in less than a sentence and it should have engaged in a differential study doesn't this part of your argument put at risk all sorts of health and safety warnings your your position on the government interest point is that a warning is unconstitutional except to the extent the government can prove that it is effective in changing consumer behavior that seems like a pretty revolutionary proposition i don't respect leon i don't think it does put it  circumstances as a new york day reynolds case that the substantial interest that needs to be driven is reducing tobacco use also is more than the statute is the r j reynolds opinion pointed out it is and as your honor pointed out the agency time and time again asked humdrum nutrition label the government is indifferent about how much you know red meat or some someone is consuming but they just want consumers to know that it has x percent fat unlike calories and whatever respect we think that nutritional labels and drug labels which which the government points to in their brief are or a very different case  of all they're much less intrusive than the end of the picture we don't decide this focus on the government interest is it is it a sufficient interest to convey fully accurate non ideological information within the meaning of solder or does the government have to defend the further interest of changing behavior as a result of the if you allow the government to mandate disclosures for the purpose of educating consumers then why not require good then it would be constitution for the government to require that  that every cigar box contain a label showing where the particular strain of tobacco was raised and and parts and what the strain is and where it was reynolds there was a stocking from the stopping point was my are you putting this information on a label and the answer was to try to prevent people from smoking if you don't have evidence that it's going to do that and you can't require that  bacco use interest puts a stop to that but they answer your question more directly with regard to nutritional labels i suspect if they just should nutritional labels are challenged before this court the government and they really haven't been the government would be defending them on a more traditional zuyder grounds which is which is that they are made in order to prevent consumer deception in the food industry and the over the counter drug industry manufacturers institute because it was advertising that eggs are good for you and the department of agriculture and said no they're not because cholesterol the government i think about far years ago said we were wrong and the in on i guess was still in effect had to be lifted that ingesting cholesterol rich eggs doesn't cause cholesterol in the blood at all so for twenty years or more the got the american public was not permitted to know th american meat was not about the size of warnings it was about the existence of them but to go back to your question in order to enable american consumers the by americans the yeah yeah and you know what happened to that the world trade organization hell they thought was a treaty violation by the united states if the e u mercan meet case came down and authorize a trade war by canada and you know what happened next congress repealed the warnings that american meet up though they're no longer in effect and this court was explicitly skeptical that the government wasn't revealing its true interest yes but in the interest had to be in preventing deception correct the un bomb court over rule that provision of r j are correct yes and and nd look not only at what the government said its interest was providing information but of keeping people from allowing people to use of american made and rd there was never a clear no argument in american heat that you had to prove that putting on the label would have people choose american meat that's what you're arguing here the problem here is not what the purpose is your claim is the government can prove it will reduce the amount of smoke but we never require that before well let me take each of those points in turn st of all the ongoing court american meat was very explicit about what it was over ruling in r j reynolds and it was only this assertion that th water only applies in situations of preventing consumer deception nd when the american beat bonbon court talked about the interesting question it always tied it back in to what the consumer was doing  it talked about the interest in consumers knowing where a product came from the event of a food borne illness outbreak in the certain country why because obviously people would would shy away from that product in such a while knowing it provided them with information from which they could make a consumer choice and this is the classic conservative position that disclosures provide the opportunity for showing us they don't force anybody to do anything they provide the opportunity for choice that's why he's out her was a stablished was issued because i said it is far less to simply require disclosure than to risk rick in the st place isn't that right but but your honor it is in these circumstances it drew from extensive findings in the statute about the preferences of consumer for its members or american meat as williams in his opinion identified the governmental the american consumer to buy american and itself so he didn't need to prove question is it's self evident that thirty percent labeling on a pack of cigars is going to produce going to reduce smoking by cigar smokers knowing especially not on this record where the agency says in its final regulatory impact analysis that there is no credible evidence that the warnings will reduce the use of tobacco if it's not it's not apparent on this record where the agency disclaims studied any of those interests is not apparent on this record after r j are were actually study the fifty percent warning on cigarettes and found after an extensive study that would only reduce use by your zero eight  percent number that was indistinguishable from zero so is not apparent here and your honor when when your honor took up the american b case in a subsequent panel pin which remains binding the national association of manufacturers case  has the burden of proving that the disclaimer will leave the identified harm by material degree and it can't relate rely exclusively on conjecture and speculation it was sorry it was an am post american it was it was  has no application to this case so that is not souter was not what was applied in the national association but we have to we have to continue read because because what happened in the ensuing paragraphs and i freighted don't have the page committed to memory was that the court said that there's a lot of dispute about where and how solder applies so we're going to take this issue off the table we're going to rest are holding on applying solver to the record in this case solder test on his own terms and keep in mind that the st line of defense there for the court was was that it did not drive the government's result that there wasn't enough evidence that would leave it to harm to a material degree it was only after that is said oh by the way if we have to reach this you know there are questions about whether this particular disdain mirrors purely factual uncontroversial so so this national associations of manufacturers or is the f c c is the post american meat case that  with a situation where the efficacy of the warning is challenge and i would take i would take the court to go back to your honor's question a few series ago there was an argument very much so in kavanagh said was that with that was that he was thankful that the that the majority opinion was an airline don't really have a mission interest and is certainly certainly the on our court have the opportunity to clarify that i found that opinion pretty persuasive but i think it cuts against you on this on mine because he says he is very concerned with judge randolph's counter slippery slope but the way he draws the line is he says traditional health and safety warnings are ok and other kinds of more novel edgier more etiological warnings right like was the product made by illegals or did the doctor perform abortions that's on the other side of the line but health and safety warnings are ok but if that's the line this part of your argument about government interest fails no no i don't i don't i don't think that was the line your honor i think i think judge judge kavanaugh was talking about the dangers especially in terms of the scope of warnings of recognizing an interest in purely improving information and if that interest would recognize it would read lead to what he called a circular analysis where where where any warning would provide more information that if it were spoken more loudly it would provide more information and better information and there would be no meaningful st amendment limit to the compulsion speech and that was intolerable he also observed that many health and safety warnings would would would satisfied as it were in which it would survive and we and we think that many health and safety warnings would but in this case he said he says the government has long required commercial disclosure to prevent consumer deception or to ensure consumer health or safety is interests explain and justify the commercial compel commercial disclosures that are common and familiar to american consumers such as nutrition labels and health warnings yes to ensure consumer health and safety being better informed does not by itself ensure consumer health and safety what the outcome to ensure is consumer demonstrate an interest in it in reducing to makkah use yeah i might not have gone to the best language on this point but i mean he also he also u held a requirement that seemed to be formulated in terms of conveying information without us without a separate focus on the question whether consumers would shift to american me  would i would just i just like to close this segment by saying the following you this is not this is not a situation where the st amendment issues have to be decided in the abstract we have a we have a regime in place where there are warnings on on all on nearly all cigar products and been place for a long time we argue for the models proposition that they should the study before moving to a larger more intrusive regime we believe that's richmond already rates that i want and therefore amendment ordinarily the course do try to resolve d non constitutional ground that's more than ordinarily yes not supposed to reach constitutional questions if we can resolve them in the past and from ground is not  scheme constituted a significant regulatory alternative that needed to be study with some meaningfulness before it was dismissed it was one that was raised in the comments urged upon the agency years your argument consider alternatives arbitrary increases for not making the determinations required by the statute right yes and i soon returned bridges because there wasn't substantial evidence supporting their government's claims and it didn't deal with the comment but devoted to go the both of your questions we also contend that the agency did not deal with the significant aspect of the problem by not going through the night of sixty one analysis that this here here we don't need to conclude that under any regime that reducing tobacco use is the only qualifying interest because congress told us what the interest as it told is that under the under the specific section of this act that the agency invoked to put the warnings in place under nine of sixty one dollars and said that the agency you need to take in the lead when changes propensity to reduce tobacco use in here the agency punted on it it stayed away from it like it was like it was a hot potato in a day and it did that because of its native experience when studying the issue that came out of r j reynolds we respectfully contend that in doing so the agency did not deal with a significant aspect of the problem and it violated its responsibilities under nine and sixty one in the absolutely would not be criticizing the court for that the result that we think is warranted under the a p a under the statute under the st amendment is that the rule be vacated remember that the agency for us thank you thank you powell starting with the constitutional question and then get it helps to sort of reset and remember what is conceded in this case st there's no question that the warnings that issue are factual and uncontroversial in the way that souter don't dispute that they agree that cigars in general setting aside specific issue of premium cigars can be required to bear the warnings that the particular textual warnings that were hired by d a here there are only disputes with respect to the particular size chosen day after day and even there with respect to size me to say in their opening brief that a larger disclosure would improve the communication of the government's message to the warning supply replied some of the boxes the cigar so it does cover some of the universe are dealing with here all right but with respect to again please just to suggest in passing that radio advertisements could be burdened by this again even assuming that's true it's not enough to sustain a facial challenge and they don't explain how it can be true that twelve words could be so burdensome as to overwhelm the rest of the message particularly when we have other examples out there of products for which more burdensome warnings have long persisted and manufacturers have nevertheless figured out how to convey their manager messages alongside them and when we're talking about the thirty percent warnings for the packages and the twenty percent for ads the example of smokeless tobacco is very helpful here so congress put that requirement in place over a decade ago or a decade ago through this bacco control act and it has been and in fact for that reason the th circuit upheld it against a st amendment challenge in the discount tobacco case and we know from that experience that manufacturers have not been put in the position that souter contemplates where they're no longer able to undertake their own for religion to smoke tobacco smoke tobacco in those but anyway i get it cost me twenty five dollars and now i have it and we're how they got no warning we it's organic and it depends on the particular cigar in the way that it's being sold in the store but it can be on the packaging that goes around that individuals that are working up here if that's not an option it can appear on a standard letter the size of paper posted at the point of sale at the cash register at the store store so display the paper at the point of sale if they choose to sell individual cigars they don't carry the warning on the product package but again some of these harder questions only come up when we're talking about premium cigars which a is ten percent of the market by a volumes that's a small fraction of the universe of covered products that we're talking about here and most of the questions that planes raise simply don't apply to the other products these are questions that will be that the current state of the evidence did not support different treatment for cigars that it didn't find that either inherent risks in her critics of those products or patterns that use made these warning statements untrue with respect to cigars or obvi need to provide them that f d a is soliciting additional information in considering comments and for the regulatory action as appropriate it will take and that's always the case and the agencies retain their ability to reconsider questions as appropriate but it doesn't sufficiently important interest and disseminating truthful nonideological health warnings there's still the question of fit and tailoring and there are at least three different strands of that reasoning that run through the cases but one thing that's perfectly clear afternoon if love is that one element of that  is about whether the regulation is unduly burdensome and it's equally clear post sniffle that the government bears the burden of proof on that question agreed so how have you satisfied your burden of proof on the question whether thirty percent is too burdensome or not thirty percent and twenty percent is t at least as as the court went through that reasoning it was premised on the conclusion that it's been the providers wanting to analogous to the situation here where the advertiser says you know radio time is very expensive and you know if i'm buying thirty seconds and i only get twenty consider takes me ten seconds to say those twelve words i won't buy those s right so i think it's very helpful to look to the existing universe of information including drug ads so we know from our own experience as they drug ads are very expensive we see them all the time on television we hear them on the radio they are required to say many more than twelve words in those ads and yet those ads persist it is the manufacturers have have made the assessment that it is still worth it to communicate and they are still able to get their words in there it's not as though it's eating up a majority much less the entirety of the message so the idea that makes it somewhat less appealing sure less appealing for a manufacturer to have to let people know in noticeable that if they're likely going to do that things  but the fact that it maybe i guess i'm thinking of package warnings in that context is a lot more than twelve words but it's usually usually an insert right i think many over the counter drugs that i may have have a great deal of that tax on the package and i think a great deal as a percentage matter and we do know that in the brief but it is i mean that at thirty percent or twenty percent i much less than how and the thirty percent you i should note is thirty percent of the two principal display panels that actually there's a number of other to sleep in all too so it's actually greater than the seventy percent but the thirty numbers are gas but there's been no explanation here as to how the remaining space will be inadequate for the brand information or instructions or or any of that in the six circuit we found that it that it was adequate there but crean if was sort of equat almost rational basis review which is not realistic anymore but let's there are some examples in the brief of  packages where the thirty percent warning is the true civilly stamp as a rectangle in the middle of the ad and the overall effect is that it has a feel of someone is trying to speak in the background and the government is literally stamping out the speech some my question is would it be permissible under these regs for advertisers to place the warning in let's take a bottom thirty percent of the god and we the speaker take the top seventy percent and then put the warning all at the bottom i don't mean i think with respect to packages  let's still there's a question of location and i mean if you can still design around it so it doesn't need to be in the hopper area but it doesn't mean it goes on top of the manufacturer's own message so i don't think any of the presidents out there suggest that something like the location is what makes the constitutional difference and again it you know sort of bring it back to the core of what we're talking about in this this is the type of uncontroversial standard product safety warning supreme court opinion in your legal advertising you had to include the text of the entire opinion which just made it impossible it's very different from events where you know to include all the required disclosures or disclaimers would truly preclude you from meetings in the credentials on a business card or a letter maybe so but let's take another data point which is much more highly analogous which is american beverage th circuit in bank post i forget the exact number to twenty percent or thirty percent warning about sugary drinks and they say the government loses because they failed to prove that yes you need twenty percent as opposed to ten percent right and actually and they were unanimous they split on the reasoning but i mean eleven judges on the th circuit unanimously thought that that doesn't survive the post an they're the government's own evidence supported the contention that a ten percent warning instead of the twenty percent warning would effectively convey the message that it was the government's interest to provide it and on that record there was no justification for the larger size here there is ample evidence in plaintiff's own confession that in the context of tobacco products that a larger warning helps consumers better understand and appreciate undisputed rest so there is there is no question here there's no american beverage problem about whether thirty percent will really do more than ten percent that that is just clear on this record the st amendment analysis  supposed to balance speaker burdens against government interests and we need or the government circulation on the st amendment point really only addresses half of that equation government's theory bigger is better right the bigger the warning the more likely it will make an impression on the consumer and that's perfectly fine if far as it goes strikes me is at least plausible but it's only half the equation well i think which where does the government balance the bigger is better for purposes of the government interest against bigger is worse from the perspective of the advertiser i do think it's worth bearing in mind that when we're talking about its outer the st amendment interest is largely on the part of the consumers receiving the information that's of course true that manufacturers also have a protected right in this speech that her doctor and it is premised on the notion that the mean value of commercial speech is in providing information to consumers and so the interest of premised on premised on the notion that there is minimal interest in suppressing the warning but then there's a separate concern about chilling the affirmative protected commercial speech that's a that is of course it to a but if i think you know in inflating the acknowledgment that bigger will communicate better i don't mean to suggest that that was the entire motivating principle here if that's what f d a was going for it wouldn't stop at thirty percent that's not the biggest you can do with that but that's all i found in the in the sections of the final rule where they defend the warning explain that's their rationale they're bigger is better it'll make a better impression on consumers this is what congress has done with regard to smokeless and this is what it's done in europe under that treaty and  double that for good measure as i mean they need to be at least this day to further the very important public health interest that we're getting out here and then stopped at that number consistent with the past practice both here and abroad finding the percent were a requirement for smokeless tobacco packages and again those have been in effect for a decade with no observable detriment to the industry manufacturers of this tobacco continue to market their products they have designed their packaging sufficient space for additional warnings manufacturer's instructions and random in that regard they say it's consistent with the st amendment so i take it they did waive the other side yes your honor they did not weigh these kind of things they gave the reasons on both line from being factual enough from you conceded that the information that these warnings but i will not have an effect on people people that now smoke cigars or may take manufacturers and retailers to provide with respect to cigars but again any anything that crossed the line from the factional uncontroversial would take it outside of saudi or doctrine and it would be subject to certain anything about how the product was farmed raise species rolled transported how long it will stay lit you know all that the government can there and that's and it can do it under the heading this gives information to consumers and we don't have to prove what effect that information will have on us and that's consistent with american me the examples given in that case included fabric on times care of clothing you know disclosures about basic product characteristics that could be material to consumers using are choosing whether to use those products so ye but right so if it crosses the burden to being controversial or if it just takes up so much space that the manufacturer can't be moved out or cases say that that's too much you know that point you may be talking about a restriction and subject distinguishable on that basis f d a also explained in this rule that it's very important to have the warning on the product packaging because consumers then noticed that the two most important points of time which is when they're choosing whether to purchase the product in the could i just ask you about the statute for a minute we've we've talked a lot about whether for st amendment purposes the government interest in conveying information is sufficient but the statute this sachi requires the government at least to consider impacts of the warning labels on smoking behavior how many smokers or how many smokers are likely to quit take into account as you understand i didn't see anything i haven't read every word in the order but i did look at everything the district court cited and everything my law court found and i didn't see anything in the agency's justification that spoke about impact on smoking behavior as opposed to this other interest in just disseminating information so is certainly considered the benefits that the rule could have of reporting this morning to how for the different populations mentioned in this provision and considered any issues raised in the commons about possible detriments or  commenters raised the possibility that larger warming could create cause people to go numb to the message of the warnings and consider that none of that was not at the scene she addressed that it was unlikely that they would backfire but every time they specifically addressed warnings they framed their analysis in terms of the effectiveness of the warning not in changing smoking behavior but in conveying information and that's not suggest would be to conclude that congress intended to tie f d a hands so that it cannot regulate tobacco products unless it has confuted that there are measurable behavioral effects and it is clearly not in others and others reading of it would be that at a minimum the agency has to take that into account which is the words of the statute yes and i don't see where an agency did that i think further your honor to take into account available evidence concerning the about addictive products and that's tight and that's not nothing in here commands that reading suppose i suppose i think that the agency at least needs to take into account impact on smoking behavior what's your best site or two in this long final rule for where they did that i would need to follow up with this a i do think you can reason from effectively providing information to people to putting them in a position to change their behaviors so that's again behavioral changes not the interest on which the agency rely but it's not as though it was you can be indifferent as to that result they would it would putting me on a little the legal background of the statute isn't passed in a vacuum it's passed against the background of r j reynolds and we've been talking at great length about this question of what different from what you might think about eight statutory requirement if the order had sad in the face of this statute if the order had explicitly we do not know and take no position on whether warnings would have any impact at all on smoking behavior but we think they important in order to convey information to facilitate consumer choice with that explanation survive under the statute in the a p a if i my weakness a little for the hypothetical directly you determine i would be more helpful but i i think in the absence of available evidence measuring behavioral change in the world which again is exceedingly hard to do for at what the statute is trying to get be certain regulatory measures that could benefit one of those groups were creating harm for others and so what what this requires that that f d a take into risks and benefits for both those groups and satisfy itself that it's not going to increase overall smoking as a result of that and there's explicitly disclaim any knowledge or opinion on smoking behavior you're positing a nd hypo where they say they consider smoking behavior and they say gosh it's really hard to assess but we think want to get into it we got into that in our jr we went down the rabbit hole it's hard we have now come up with an independent theory we go theory that doesn't require us to get into that so we're not going to i think i think there may be other ways for the agency to express that it has satisfied this weighing of risks for different populations and that it has reason to conclusion that it's appropriate for the public health insofar as it will only benefit these different groups that there is no risk  was not able to produce that type of quantification and that's not to say that it didn't consider the different ways in which the warning would benefit different populations of users of non users and it also considered as i mentioned the suggestion that it could actually be harmful to require larger warnings because of this numbing the fact and it concluded that there was actually no such risk so we have on the record here only way is that these warnings can provide a public health benefit they provide more information that people can better understand and with that information people can make choices there is certainly a hope that people make choices that benefit their health but the statute does not require that f d a in each instance before it can begin regulating make a very difficult just as a defining about measurable behavioral changes in the world that's not that's not what congress said here and it would it would really do harm to ask whether what what i'm trying to figure out exactly what you what you mean by this so is this just to pick an example beating electronic cigarettes is the idea here is it is what you think the idea of this provision is too much restriction much restriction on certain kinds of things may lead to you for smoking is that what they're talking about rather than the question of whether the warnings will effectively reduce smoking yes your honor so pretty precisely as your example are conceivable regulations that although they might benefit one group as for example by having you know helping someone switch to a product farther down the risk continue on the dot product also appeals to youth in a particular way and is you know has another context discussed the problems with many of the studies and the problem with trying to quantify behavior all effects which is why they are not one of my dear in the statute does not require them to be  very comprehensively considered the advantages and arguable rest of these marginally larger warnings that thirty percent of the package and twenty percent of the advertisements to bring cigars and pipe ok thank you we've let both of you go over time by almost exactly the same amount will give you a couple extra minutes up thank you your honor just a few points first of all the findings in the final rule in the proposed rule focused on this interest in effective communication  nothing specific to warnings on tobacco use the only time we're reducing tobacco use as mentioned is with regard to find the truth regarding the whole rule which doesn't really address the nine hundred and sixty one question one hundred and sixty one only applies to the marking restriction not the effect of the whole rule and they're even there the analysis was very light in conclusory respectfully we think that the agency's avoidance of any serious analysis much less study ones did those restrictions include ones that arise from the deeming or are they just the separate ones that the youth the prohibition on selling to youth and the and the warnings here  so there were a bunch of stuff going on the d v d rule one thing that happened in the deeming rule triggers a whole separate exactly sequoias so there's section nine of one of the already the allowed the agency to deem products subject to the act that triggered a series of consequences that the warning requirements was difficult you need to be studied and what's the basis for that statute seems to me crystal clear that there has to be consideration of impacts on smoking yes but i'm not sure it's crystal clear that they have to disentangle the impacts from the warning piece of this regulatory initiative from the other pieces including  marketing prohibition or the youth sale prohibition as to which the impact would be self evident i understand your question you're on the the on the bus finding the i'm talking about read it get you a citation for sixty so i'm with you on perhaps if the agency had had a find is that between the age restrictions and the warning requirements the nine of six restrictions will reduce tobacco use that would be a different case the agency didn't make that finding the thing was that flowed from the exercise of regulatory authority not the whole rule including deeming just the advertising restrictions the restriction on sale t really have the meaningful taking of account of issues that that the statute requires and you can't just conclude that you need to explain it and that a minimum there should have been an explanation for why the warning requirements drove this reduction and back  e your of course patience with me is probably running out but i i would just i would just i would just conclude with the fact that i think what we heard from the god of patients you're providing information speaker to show that there's a chilling effect on the speech and i would refer the court to page twenty eight thousand and ninety eight dollars of the final rule that's and value meeting one of the federal register where that where the agency explicitly puts the burden on the commenters to to demonstrate that the seventy percent that's left on packets is the eighty percent that's left on every tysons isn't enough and i think if we were to adopt the government's position on on the level of scrutiny just required under zod or and kind of deferred to the government on how big is enough we would be breaking ball from american meat i'm sorry american beverage out and out in the night circuit which which required a demonstration by the government that smaller warnings would not suffice but we also be breaking for missouri's posing council's right that that case rested explicitly in the fact that the defendant's own expert reached the conclusion it's amazing who thinks this is an expert but an expert said that that size wasn't necessary right or remember where they were coming from zero right in the end so their expert got up and said listen warnings could actually you know get people good people better informed about sugar added beverages but if i did it rested on that my expert finding offense on expert finding the opposite of what that guy was trying is done a focus group on a ten percent warning but but i don't think that the f d a should be rewarded for not examining the prevailing scheme in place right now in seeing whether that's effective to accomplish whatever interested thinks is appropriate whether it's effectively commuting regains cigar health risks or whether it's reducing tobacco use i think i think the american beverage court is very clear that the burden is on the government to show that lesser intrusions will not suffice and i think that's absolutely president has to be least  turn no no no absolutely not i would as you get to eat less or wash than you have to address the next lesser one well if fortunately in this case we're not left with this kind of infinite series of seventy percent i mean here we had absolutely no study of the prevailing morning scheme that was in place for the last seventeen years that was that was fully implemented the united states that was available for study and analysis that you argue and then quote you argue for a less restrictive option shouldn't be alternative which is only a two is between two that option a less restrictive option and the government comes back and says that the law is not option would fail would fail to accomplish the government's objectives and again i'd direct the court to page twenty nine thousand and sixty six of the final rule there in the agency deals with the f c c for many requirements in the sentence and this is this is not what the st amendment can tolerate and frankly i don't think it's what the mistreated procedure act can tolerate as well instead what the agency did is it turned international consensus and  you correctly pointed out that that convention hasn't been ratified by the united states and as a matter of fact when before the united states signed it is objected to the formatting requirements of the warning of the warning labels for tobacco because they might violate our st amendment and i suspect that if that treaty had ever been ratified it would have been something by reservation from from from the united states and i don't think what one part of the executive branch can come