f defendants jason's cosmetic products which are bath and body lotions we allege they were mislabeled as being natural when in fact they contained multiple synthetic and artificial ingredients they're well recognized to be as such the issue presented in this appeal is whether or not the district court in dismissing the case and entering the judgment did so in error the answer is yes it was air first the supreme court very clearly has said that when you want to find a case is subject to primary jurisdiction the district court's options are either to stay in refer because the whole point of primary jurisdiction is to get advice on a technical issue or guidance on a technical issue from the federal regulator so the classic application of this is to stay and refer the supreme court and ritter also gave the district court a second option that if the district court determined that there would be no actual prejudice to the parties from the dismissal the district court could dismiss without prejudice here the district court while purporting in the order to dismiss without prejudice actually entered judgment against the plaintiff in favor of the defendant i can't think of a more prejudicial action but putting that aside  the court could not in this case dismissed without prejudice the reason is that the plaintiffs alleged purchases over the entire statute of limitations period preceding their filing of the complaint here the applicable statutes were three and four years so if you dismissed the case the clock begins to run and they start losing claims likewise the proposed class we allege a period through throughout the entire statutory period likewise american to pipe tolling which would apply during the pendency of the class action would stop applying upon dismissal of the district court simply invoke primary jurisdiction but stayed rather than dismiss case the letter you wrote as i recall wasn't even copied to the closing counsel is that true that is true and it said that it was a referral from the court when in fact there was no referral from the court right well it the f d a letter that you got back as equivalent to one where there was a referral or a specific in korea half of an individual that laid out everything to get the opposing counsel no well if the f d a had written back and said your letters procedurally improper i would absolutely agree that the letter would apply but they in fact wrote back and expressed their their views on it and then followed that up with the statement that your honour's pointed out in the january fifteenth two thousand and fifteen order which is totally consistent with that letter response which says we are not going to regulate the term natural for cosmetic labeling but it was basically pulling the false the district court erred in saying you know this is a proper case for primary jurisdiction sure first of all you know the supreme court has said that the doctor the primary jurisdiction is not a doct futility the f d a has time and again refused to define natural as it applies to cosmetic labeling they have said time and again that the false misleading standard which is the general standard applies both under the f t c a as well as under the sherman law of california they're identical standards that is what governs the term natural labeling just like any other terminology used on the package that the f doesn't want to specifically regulate so for primary jurisdiction you have to have some some notion that the regulator actually wants to say something about it i mean you can lead a horse to water but you can't make them drink this court was faced in the unpublished opinion of chavez versus nestle with the similar situation there was a juicy juice food and they had made some statements about you know brain development and so forth and there  court said look the f d a has expressed no interest in regulating this what's the point of setting itself so here we have and the f d a in a parallel food regulation has said multiple multiple times we don't want to regulate it we then have have gone to them with cosmetic labeling in this case they said no i understand your point about the letter but then they made the policies statement and put it on their website saying we're not going to regulate it i mean what's the point of sending it to them i mean you're going to send it again we're going to require the district court referred so the f d a thinking to come back and say look for the third and fourth and fifth time we really don't want to regulate the term natural are we wasting everybody's time at this point so this is why the supreme court said look you know it's not a doctor to futility i think we're happy that you accept that all these events most of the events occurred after  the district court took action yes let's assume for the sake of argument this record had formally referred this issue to the f d a and got an answer what's wrong with that well there would be nothing wrong with it other you know here again there's been no interest by the f d a what was and what is really at issue in our case is whether or not the labels false and misleading well that's a standard the chords ply every day i mean we've cited a number of cases including the lockwood case in which they say look things that that's not a technical expertise question whether or not something's false or misleading and in our case we don't play in a grey area in our case every ingredient that we list has been well recognized by one regulation or another factually from a scientific fact as either not existing in nature at all or being synthetic so we're not even in a great area for the f d a to really debate about i mean that that's not this case so you know and if the a had answered the question of what is natural and what isn't it wouldn't resolve the case it would really would be guidance to the court and the court would have to determine if what was done in this case was false or misleading it would have to any set of facts where reference to the regulator wouldn't you know would not be appropriate then you should not refer it on a motion to this mess and i think this case fell right into that but i get back to to the salient point which the eighth circuit faced in the owner operator independent drivers case versus new prime there after the district court had referenced case  to the regulator on primary jurisdiction the regular came out and said we don't want to regulate and the court said citing the futility you know comment by the supreme court said ok what's the point i mean it's futile at this point or we understand these events happen after the disc district courts water but we have to do novo review as as your honour's do and we're going to look at this and we're going to say it this time is just completely inappropriate and i posit to you that that's exactly the situation we have here in response defendant really didn't put up much of a good argument on the primary jurisdiction their response mostly was well there are other grounds for him preemption preemption does not apply here you know your honor judge cowan in the the pres case your honor described a narrow gap they have to fall through in order to avoid preemption in these circumstances and i think you stated the plaintiff must be suing for conduct that violates the but the plaintiff must not be suing because the conduct violates the f c c ca that is exactly what we did we expressly pleaded in paragraph six of our complaint but to lay it out congress had it's twenty one u s c section three seventy nine s very akin to what the medical device saving statute is and it basically says a state law duty is not preempted unless it is different from or in addition to the federal requirement the lord court further said what we mean is the standard of conduct so the fact that you bring a state cause of l claim that has materiality as an element or negligence claim that has you know duty in breach of duty and different remedies that is not what we're talking about and the court very clearly the supreme court very clearly said in that case that it imposes it dish no obstacles for a plaintiff to impose liability on the defendant and where and in the terminology that they actually use was read it to you because i think it's significant well such a narrower requirement might be different from the federal rules in the literal sense such a difference would surely provide a strange reason for finding preemption of the state rule in so far as it duplicates the federal rule here the rules were suing under is the rule that says a  cosmetic is misbranded if it is false and misleading in any particular that is the standard under the f t c a a and the identical standard was adopted under the sherman law we cite that not only expressly in our complaint we cited in our brief it is the identical standard and that sherman last stand heard is what we say was violated in the identical f t c a standard was violated when they falsely misleadingly labeled their product as natural when it contains synthetic and an artificial ingredients and that is the premise of every single one of our causes of action so i get back to the narrow gap we fall it january fourteen directing counsel to be prepared to discuss the applicability of the statement found on the f d a website specifically as to can i label my cosmetic natural or organic and its application to the primary jurisdiction doctrine we take from this website and if frequently asked questions three primary messages first it's an example of f d a is continuing regulation of cosmetics labeling and affirms f d a is continuing authority over this issue second it confirms that the requirements for safety and labeling apply to all cosmetics no matter what their source it confirms that the f d a has not defined the term natural in cosmetic labeling and accordingly this case presents an issue of first impression to the agency namely that the f d a has not at this time defined the term natural provided informal guidance or any communication to parties with respect to how this particular term is to be used in the context of cosmetics it's important to distinguish where does that leave us if we had if we accept what you say it leaves us exactly where judge hamilton properly left this case i don't understand how district court judge can just dismiss a case without transferring it under the theory of primary jurisdiction primary jurisdiction allows the district court judge to either  petition under twenty one c f r ten point three zero right that is a formal procedure and it provides for a degree it provides the commissioner with a range of powers in adjudicating that petition and it provides the opportunity for all interested persons to participate in that proceeding that's not what happened here well i understand that but that's my question i mean the notion at least as i understand the primary jurisdiction is that one expects the agency to conduct some action or the parties are going to pursue the romneys or the court transfers i don't think there's an option for it just to be dismissed and go away the agency is supposed to do something and either does something on the representation of parties generally that they're going to pursue the remedies or it's transferred but that didn't happen here so where does that leave us i think it worth leaves us your honor is for the parties either of the parties and in this case it would be incumbent upon the plaintiffs in the appellants here to file a citizen simply be a court referral get an answer and then proceed i mean once you dismissed a complaint as file here you run into all sorts of other procedural issues so  you would you object if it were in effect stayed and then referred yes your honor now were they why would you object for the following reason me in the first instance had judge hamilton elected at the outset to refer this matter under ten twenty five she certainly could have done so and that would have been entirely appropriate and within the court's discretion did you argue that we indicated that the judge was afforded the opportunity in her discretion to either dismissed without prejudice or to or to refer to the agency so yes we indicated both potential outcomes to the court when the reason we would object judgment came into the he remained at this stage is that the question as to whether there has been some prejudice or any prejudice would result as an as a result of a dismissal without prejudice in this case was not raised below so that if she was waived and is not properly before this court so for that reason well the judge hamilton certainly could have referred this matter the fact that she chose to do so in the absence of any evidence that there would be any prejudice or injury to these particular plaintiffs she was allowed to do that and it's not appropriate for these appellants to come before this court for the first time and claim that judge hamilton erred dismissing without prejudice when they did not put that issue before her in the underlying motion it has not been and that i don't eat that's that's that's the distinction that we have we have urged upon this court that these are very different standards and the f d a treats these issues differently so for over twenty knowledge the difficulty in defining the term natural in foods and we should acknowledge that natural means different things in different contexts and elected not to define the term but rather to provide guidance in the form of an informal policy that informal policy has guided district courts in this circuit now since one thousand nine hundred three there have been extinct there have been further requests from district court judges to the to the f d a to ask for further clarification with respect to that informal guidance and those requests have were turned in referred the parties back to the informal guidance saying we believe this is adequate and appropriate at this time and courts importantly have applied that informal guidance as recently as this last year judge hole in the northern district in a case involving dole applied the informal policy in granting a motion for summary judgment let's get no actual ruling out of the f d a but we have quite clearly on their website that basically says what i'm going to regulate so why isn't it futile to send it back over and say could you just tell us that again just because you know i don't believe of the reading of the website indicates that they do not intend to regulate what it states plainly and clearly is that we do not have a definition or regulatory definition for dan actually it does not indicate that the f d a does not intend at some future time to offer guidance or or to comment upon the application of this issue it has never been asked that's the important piece and to your question the importance of the the letter from dr linda catch here is meaningful because that doesn't indicate an expression of the f d a is position it cannot a piece of private correspondence from a subordinate official cannot constitute only just assume we put that over on the shelf for now just because it came after the district court it arose in the context that it did but we're still left with this i mean you have a i was quite impressed with your three reasons why the website is positive for you but it's putting a pretty charitable  gloss on it they were here with the website basically saying that it doesn't have a definition of natural correct and so why why would we send it back over the f d a why not just let it go and up or down it's either false or misleading or maybe it's not i have no idea but isn't that just something that ought to proceed under california law and with the proviso that there are labeling requirements federal labeling requirements that things have to be accurate because your honor the in this case the syntax factors are all supportive of the view that the agency should be given the opportunity and that is the key here not whether or not we it's not for this court to speculate as to what the as to what f d a is going to do in the cosmetics arena rather it's to afforded the opportunity to act in a proper procedural posture in which comments will be taken in which the commissioner has the authority and certain tools at her disposal to gather information in which interested parties can participate the core of the core issue here in the primary jurisdiction is the opportunity for the f d a to act and i don't believe that there is any record here that such an opportunity would be futile that that the opportunity will be what why didn't you as chief judge thomas suggested if you really want to know what's natural and not natural why would you file a petition if you don't really want to know the answer the answer will be we're not going to we're not going to tell you proceed at your own risk is position with respect to labeling we believe as comprehensive as a relates specifically to ingredients that the very website that we've been discussing makes a further note that and instruction don't use terms such as natural as part of an ingredient statement because ingredients must be listed by their common or usual names without additional description detailed guidance with respect to the ingredients statement identity on the front john the principle display panel it is our view that the current state of the law with respect to f d a is pronouncements on the labeling of cosmetics is that the is regulations with respect to poultry and livestock should be imported into the cosmetics arena that's the couldn't that's the nature of the complaint when mr chronic urges that this issue has come before multiple times what he's referring to is the food cases and the suggestion that this is now a scientific fact is all related to those cases in those instances in which these questions have come up in the food context those cases opportunity to act and that's really at the core of the primary jurisdiction doctrine and informed judge hamilton's decision in this case in her weighing of this in tech factors which she decided was it was inappropriate for the federal district court to wade in to an area where the f d a has provided no guidance whatsoever in an important sector of the economy that touches not just a handful of products that are issue here there are over two hundred jason products there but  actually did refer to the agency we didn't dismiss it yes that's right you're right in we would we would refer the court to a series of instances in which district courts have dismissed without prejudice the watkins versus the vital pharmaceuticals out of the central district in two thousand and thirteen state law claims researcher to primary jurisdiction case out remedy that you're seeking and then interested parties have an opportunity to participate we would certainly participate because there is an obligation on the commissioner to issue a decision and in rendering that in and performing that function over a period of six months the commissioner is granted a range of tools and every ten cheree powers to gather information so as to make that determination that's what should have happened here but the fact that it did not one of these what your objection if you just got done telling me that i mean in effect you're not afraid of the as an academic question your honor that would be entirely appropriate had the below raised the issue with judge hamilton that dismissal without prejudice would cause them some injury that issue was not presented below when presented with them why can't we just wanted to the thank you i think there's one misnomer here which is you need a private party to actually ask the f d a the f d a can do it on their own and they have had more they've even given it thought i mean here we have as you set forth in your january fourteenth the water statement by them that we're not defining natural you know they do explain in the letter why because there are limited resources they wan focus on health and safety issues they understand it would be a very long protracted lawmaking process these are exactly the same things that they went through when they were looking at regulating natural for in the food context and they decided not to so i get every in dishy here is that there would be no difference the f d a doesn't want to define natural at this time let me talk through with some of the options number one opposing counsel says that with respect to prejudice these are the dismissal as opposed to a day that that was never raised in the district court so to begin i would appreciate your comment on that yes your honor and the reader case the supreme court makes it quite clear that the district court has the discretion to stay and refer and if and only if the district court this we have a whole series of prejudicial fallout from that well yes your honor i think it was quite obvious from the complaint i think you allege a class period that spans  statue of limitations that's pretty obvious i think you can look at the paragraphs and there was a special heading a special section for each plaintiff you can look there and see the time period of with what they allege given that it is the district court under the supreme court's decision a reader to assess that prejudice for before taking the step of dismissal without prejudice because they have the option of staying in referring i would point out that yes we did not specifically raise it but then again the court she should have under read or looked at that before dismissal and here the court went the next step and then a judgment against us we had no choice but to appeal so  that we got past that issue and let's say that we cannot credit the letter from the f d a to you for a variety of reasons but now we have this website information on the table is that something that should be remanded to the district court for consideration i know her point d that this court should as judge judge thomas suggests delay that in the syntax case referred ourselves to the f d a well your honor it is a did overview so i think your your honour's can review gives your honour's i would suggest again that referral to the f d a if you look at the in disha look at the end dishes the statement i understand the letter but the letter in there explains a lot of what they're thinking and if you look at that and then compare what they've said in the food realm which is exactly the same thing and they don't want to regulate there either i mean this this f d a is saying we are limited fund we want to focus on health and safety which we all understand that i mean i think we want regulated do that first we don't want to focus as much on the labeling we're going to tell people give them some guidance here which they did in their statement which is don't be false and misleading and natural there's a lot of triumphs on labels that the f d a doesn't define they don't the following all the terms so they've decided not to define this one there's probably thousands of other terms that are used on labels that the f d a doesn't define they don't have to define everyone and here unlike a lot of most of those other terms they actually thought about it and they have shown in their statement on their website that they did give it some thought and they decided not to so i think if you look at all those and disha you add them up and you say ok we refer are we really doing something that the f d a said they don't want to regulate right now wouldn't this act be futile with this point should we let the case proceed and should we also think about this other thing there's a copycat case filed it's pending it's still