experts and in many instances was even admitted to by defendants themselves showing that in violation of consent orders entered in two thousand defendants made a number of claims in advertising certain products that are not substantiated by any scientific evidence and in making those claims misrepresented the existence or contents of studies the district court ignored this undisputed evidence however and focused instead on competing expert testimony between the defendant's experts and the f t c as experts concerning what constituted competent and reliable scientific evidence as defined in the  the problem with that is that that only addressed some of the claims that the f t c challenge in this contempt action but even accepting they are defendants the defendants experts testimony regarding what amounted to competent and reliable scientific evidence that left unaddressed risk claims and in particular with regard to add the cowlick has him supplement that was not disputed by the show by clear and convincing evidence which the f t c did now in reviewing their service and you know what to show that they violated provisions of the order and in this case the provisions the relevant provision who are paragraph three of the order which that judge have an aa held that the f t c had failed to prove by clear and convincing evidence that the defendants disobeyed the relevant provisions on substantial compliance which well the in a number of different issues to get was an alternative hold correct well that was that was that yes that was that was an alternative holding even if there were contempt under an abuse of discretion standard to be noncontroversial let's go beyond that however and assess assuming we're reviewing the determination of substantial compl i'm sure iest as to whether we review substantially substantial compliance determination and i couldn't find an answer as a question of law was a question error in that as this court has has applied and in the robin woods versus words we didn't know we didn't adopt it we accept that it's been recognized and we just kind of assume that we have yet to adopt that that's correct and but certainly under that that the legal standard a two prong legal standard that was at least applied in that case if not if not expressly adopted  in assuming they were in compliance since they heard nothing to the contrary for years and years now that's a fact finding isn't it i mean reasonable this is  that that's correct but then you have to get it whether it's technically yes that's correct and in this case again that the errors that that we allege in in the liability the the first inquiry as to whether claims including the claims as to which evidence was undisputed that also infected the district courts that are also infected the district court's determination that they substantially not use the word ignore i think we have to cut to the chase yes because i know i am very concerned about this the defendants involved with with reason the february two thousand and one compliance report that they filed and they urge on os to consider it and to consider the amounts of materials including many of the ads at issue here that were disclosed in february two thousand  reply brief makes no mention none of the february two thousand and one compliance report the one reference that one generic compliance reports and that's it but the defendant heard nothing for you from you for almost six years about the what they had submitted why was it on reasonable for them to assume that they could continue doing the things they had disclosed six years earlier well your honor in this particular case and has keep in mind that there was litigation brought by the f t c which was which was still pending and w as it that case was not decided until two thousand and four which although involved not the same products different products but the types of claims that they were making and that tied their practice for example on relying on on so called third party literature which which made unsubstantiated complaint orders were july sixth and september twenty sixth two thousand yes  in the in the f d a litigation they made the defendants in this action made a very similar argument as to well your honor we submitted compliance reports to the f t c in two thousand and one and they haven't they haven't taken any action so we can presume that they've made the determination that there are no continuing violation of a reasonable  e under these circumstances your honor is in this case it is not given given in the context of the f the f d a litigation when they raise the similar issue based on the f c inaction in the face of their submission of compliance reporting f t c submitted a declaration and the district court so held that the lack of immediate action by the f t c in receiving compliance reports was not to be considered to be a determination by the f t c that the advertising that that defendants were made in the claims that they were making about their products  and say we're a little worried about this the yet you see did not write a letter saying we're worried about this they continued to solicit additional information and particularly in light of but the when the f d a and be ruling on this is a matter of lakshmi's because you have it invoked fundamental fairness and i don't know what there is in this court without a sorry just what was it that the district court did though it was not strictly a latches defense and that it did not operate as a total bar it nonetheless it has been called different things this type of argument that the government's de lay and in some instances longer delays than in this case in in telling defendants that their conduct is wrong and chien and then bringing an enforcement action against that the courts have uniformly held that those type of arguments whether raised as a stop all arguments latches or and the supreme court's language that we quoted in our brief just a general neglect of duty as a matter of law will not will not save the defendants and will not preclude that the government from from proceeding on those claims but that that might that's true of course it's true isn't the district court and to take that into in in in the robin woods case as well has made very clear that wilfulness is not an element of civil contempt isn't obeyed the consent order as you can see there that's the first question that that is one of three things that must be found for finding approval contempt is not the fact that for almost six years the defendant heard nothing from the f t c following voluminous submissions a factor that looking at whether there are violations or excuse me disobeying it's affirmative obligations imposed by the consent orders that defendants are not to make claims about the effects or health benefits of their products unless they possess competent and reliable scientific evidence in support of those claims and not misrepresent the existence or contents a study because they never heard from you your honor it's that to t only calcium that can increase bone density where is there support in the record for the district court ultimate determination here because he really ma no specific findings of fact with respect yes is a violation he made an overall determination of of credibility what does the record show with respect read what's in the record on that is andrew lane one of the defendants testimony that what he meant by that although he testified to that although what scientists me mr lane did not testify that there was any substantiation is expert did not testify that there was any substantiation that relied entirely on on their their argument that they did not make that claim they were not responsible but they i would say that they are incorrect we did not make that claim the material cited in the record in support of that claim a consist of a internal consultants report that was never circulated it consisted of an e mail to an overseas lebanese distributor and it consisted in their mind of in article that was third party literature that was not written by my client did you tell did you communicate because the if the article that you're referring to is only one small piece of all the advertising not asking context i'm not asking just how it relatively compares to any other misrepresentation i'm asking whether or not lane affirmatively took the step of distributing to the public or to potential customers a newsletter bearing containing the false claim that it was superior already over equal equivalence with prescription drugs well we did lame labs did circulate that article and then you also emailed the distributors stating that a point that newsletter was part of the february two thousand and one compliance report it was also candidly posted on the lane last link to the main labs website which the f t c also accessed in february two thousand and one so be it as it may whether that was a smart thing to do and what or not to circulate that article fact remains is that the f t c had that material at its disposal other things to do and they don't have enough people let me address that in two ways first of all opposition is not that this is a defense it's a fact the fact that they didn't w fact of the matter is that this case the f t c put themselves in this position they could have filed a new complaint and prove this allegation by preponderance of the evidence they didn't they chose to this notion that the and in fact the district court analyzed or were invoked the whole notion of delay within the section have in his opinion dealing with substantial compliance and he and he he  talks about it not judge you have to cease conduct but in judging lane last conduct should lean left have done something what was it reasonable for elaine labs to believe it had to do more i just would like to add though the consent order judge  contract and this should be on both sides covered at the fair dealing if you will resolve this and the f t c could have done like any other government agency does the government dea among other things prohibited your client from using third party publications in advertising and promotion in a way that would be false deceptive or misleading under section five  it among other things in that it says that we should misrepresent the the results of research and intent so assuming the government delay assuming the lengthy government delay that's been referred to here how does that record what's reasonable and the government this idea of lack of resources i am dressed up for a moment you know in today's day and age every government agency s e c get a part of justice and say in many cases government agencies do that they chose not to do that they could have had us a couple expense like the as you see or department justice or many other agencies do pay for our own monitor to monitor the compliance  are incorrect for example you agree then to that the advertisement with respect to clinical tests was misleading the one that says coke has been clinically a technical violation mr lane conceded there were no clinical studies but they were right back studies there were adamant studies and there was also studies on animals hippest the same as mine no it's not but we had that evidence plus we had the evidence of other calcium products who have shown a positive effect on him and we have expert testimony you could extract the late from that research to the i think you've got to two different things you've got bone density and and and and effect i see a coming on the end of my tie let me just say as far as the the findings the standard of review is not how thorough judge cabinet opinion is the standard view is that there was any plausible basis in the record to support what he did and the reasonableness determination is a factual basis a factual decision and we're not just limited to the testimony live testimony experts but ju just one quick question of course should we especially in view of the fact that your argument really implicates the greatly the last portion of in which the substantial compliance section should this court use this case as an exception to explicitly adopt a substantial compliance tass and if so shouldn't we follow the robin woods lead i think that there's some confusion as to whether the state has been adopted or not and how our city city of philadelphia that's a different case than in possibility issue that the city good afternoon may please the court my name is paul carr deli i have a few minutes to argue on behalf of dr william lee but is much as i want to stand here and defend dr lee and i also want to defend judge kavanaugh because there's been at least some discussion about what his opinion was and wasn't and what i think we need to emphasize is that judge cavanagh held a five day hearing with thirteen hundred pages of transcript he let the f t c put in every piece of evidence that  wanted to including as i recall in characterizing their first witness as the worst hearsay witness in thirty five years jones coming ahead pre hearing submissions and posting submissions and he actually said in his opinion at one point the was that this was essentially a difference of opinion between experts and to say as the f t c does now the judge kavanaugh ignored certain things is not only to ignore what happened below but also to ignore his opinion if you look at page three of his and he says very clearly this is what this case is about and these are representative claims of what i have listened to but he listened to all of the evidence he questioned angeline specifically on t point that your honour's raised about the use of the term clinical in one of the ets and he and andrew lane said that was a mistake and judge cavanagh in his opinion said some things through the years slip through the cracks and mistakes were but judge kavanaugh his role here was to determine whether or not these defendants should have been held in contempt and he determined based upon all of the evidence he was not satisfied that the government met the standard for proof which is clear and convincing and is very significant so what this court is really compelled to do is to look to see if judge kavanagh misapplied the law and we contend that he did not or found facts that were clearly erroneous  your honour's based upon the testimony before he made credibility determinations which i think the case law in the circuit says almost by definition cannot be clearly erroneous he made credibility determinations about the competing expert witnesses he characterize it as a battle of experts at one point and that in and of itself speaks volumes i think in terms of meeting the standard of clear and convincing evidence the f t c had experts that simply disagreed with the quality of substantiation but not these ads were not unsubstantiated in judge kavanagh so found he found that the defendants not only reasonably complied with the orders but they had credible substantiat i'm sorry for the ends and that was their obligation to the ins and so we asked this court to do is to simply recognize its role deferring to judge kavanagh as it must and recognizing the having to him on  one on his very careful review of the evidence on his findings of fact in specifically in terms of substantiation he dealt with each of the claims that what what are those specific the end but it's based upon a number of findings of fact judge kavanaugh did not issue an opinion nor did he rule from the bench specific findings of fact as to each claim that the f t c challenge if he did that this would be hundreds if not a thousand pages via the compliance reports that give the court a sense were thousands of pages and there were thousands of pages of evidence so i think it's a little bit unfair to expect them judge you have a no that he engaged in findings fact as to each specific claim i don't think the law requires that i think what the law requires judge kevin to do is to accept the evidence assess the credibility of the witnesses and determine whether or not contempt has occurred this wasn't really a trial as much as it was a motion and frankly your honour's emotion based upon two years two and a half years i think of discovery by the f t c and one of the first questions the district court asked us is why is any discovery necessary you know  certainly did apply is that the burden is on the defendants and this court in other circumstances has made that clear other courts have made it clear the burden is on defendant two to particularly a substantial compliance defense and i think that that t prong standard is is a good one compliance is often argued it's rarely found but i think having that definition of who has crept through the defendant i mean that's assuming that that that comes up in the context of the the what's happening at this moment but there is no winning and they are taking the position that and right now they have a district court opinion that that gives a green light to to these types of claims and so as far as i know they're continuing to make these claims in their advertising but i do not know that for for a fact certain i have a question which which i would like to ask dr haneef testified the defendant's claim that advocate how is effect of  prescription drugs for preventing fractures is quote potentially dangerous and dr needham berger testified that quote there might be harm from taking maka when did you first learn that  that came out in testimony for the first time that with regard to mark i believe so about dr haney and the prescription drugs for preventing fractures of potentially dangerous well i think in in general the concern about it not necessarily even so much with regard to fractures but with regard to making an equivalency to prescription drug claims to the extent that that dissuades that dissuades consumers who would benefit from medication from instead spending their money on on a calcium supplement that that that there risk there with that wasn't that wasn't the basis for the commission's claim for a you know what if the if the commission not the commission was not monitoring the lane labs conduct and never responded to the two thousand and one compliance report i mean if there was a concern that was maybe not the primary concern there was a potential health risks perhaps shouldn't picked it up earlier by monitoring well him i responding i mean i couldn't i could speculate that if there had been some actual if there had been some some more compelling  yes i mean it's a concern i don't think that there was anything more compelling than that but certainly the district courts focus on on and i know i'll just leave since since my time is away over just just we were these thoughts this was a i think that portion  of the district's opinion where it focuses on well these generally there was testimony this were generally good products and there was no you know when he glossed over the evidence that showed that at least the risk of physical harm his his  his repetition in several instances including in the substantial compliance section of his decision that there was no evidence of physical harm completely glosses over the fact that if there had any evidence of physical harm th i would think it would have been coming on the up you so you could be in there very early checking and advising presumably if there had been compelling evidence of that i sent it to the commission the commission was aware of things might have proceeded differently but  behalf things that it's dangerous to advertise this is appropriate remedy for roses and given what the figures are as to the number of women and some men who remand for further proceedings on the issue