hear argument next in case twelve seven six one palm wonderful versus the coca cola company mr waxman mr chief justice and may it please the court the lanham act provides a remedy for businesses whose market is misappropriated b competitors that misrepresent the character of the goods they sell this case presents an egregious violation of the law and coca cola is labeled grossly misleads consumers as coke anticipated but cope says that it need not answer under the lanham act because its label is authorized by f d a regulations the label is not in fact authorized for reasons we explain and with which the united states largely agrees but even if it were consistent with f d a regulations that would not strip palm of its right to prove a willful lanham act violation courts are obligated to give full effect to congressional enactments wherever possible here congress has never precluded or conditioned in foresman of the lanham act in food labeling cases and it is entirely possible in fact particular ad doesn't comport with the regulations and hence would be subject to the man just sort of maybe that's a better question for the estate but i'm trying to figure out well let me let let me take a shot at it and you know the s g can and ms sullivan can as well there's no question under as this court explained in bachmann that there is no private cause of action to enforce provisions of the f t c a now this court in b distinguish medtronic first as war which provided and hell and did not and save from preemption a state law that was that imposed parallel requirements and and in that in that instance and this is not a case involving an attempt to enforce parallel requirements under state law or any other law in those circumstances as the government explains of course a court is going to be required to ascertain what those parallel requirements are and whether they were weren't complied with but this is a case involving a different statute our submission is that it is entirely irrelevant whether or not the coke label in any particular is consistent with a regulation that implements criminal prohibitions by announcing when and under what limited circumstances the f d a will forbear from exercising its criminal and regulatory penalties even in that instance with respect your honor as this court explained in why applying it to supply a floor and not a ceiling and the f d a would have no authority if the f d a said this label is fine and you are required to use this label the question would be does it have the statutory authority to essentially create an immunity from enforcement of a no other federal statute that protects a different purpose and a different class of victim i think the answer would be no as i think it's a question i think was different he said suppose that it said you're required to use this label and only this label then you would acknowledge that there is an impossibility issue is that right yes on west as in why if there was in fact some possibility to change the label but if and i apologize if i didn't understand the question if the f d a said counter factual we we've examined this label you were not only permitted to use it but you were required to use it and unlike what we do with respect to pharmaceuticals you are not allowed to make any changes in that instance there would be an irreconcilable conflict and a court would have to decide which of two opposite facing canons of construction to give privacy too but that would be impossible why isn't there a different kind of conflict here let's just focus on the name which is what the solicitor general says the a has considered and has specifically permitted that it they went through the very long and involved process and they decided exactly what kind of names were permitted for this kind of product and what were not committed because they constituted let's say that the f d a said that this team was not miss brand and that this name was fine under their regulations that they did not count as misbranding so we are challenging the label as a whole which is covered by under the no science or stand that you would have some claims about different parts not label but i'm only asking about your claim and as your claim as to the specific thing that the f d a ruled i am right and the question is whether congress gave any indication and it would have to in this context where the lanham act is an express statutory enactment that congress was well aware of when it enact the nutrition labeling act and in fact was told not just by the industry but by o m b in testimony that the way an american was being used to police misrepresentations of the character of food products you would have to conclude that congress intended to allow the f d a to supply if you will the substantive rule of decision under a different statute that uses different words and and protect a different class of people when and here i get i think it's an important indicator why congress didn't mean that the f d a the misbranding provisions of the f and the federal register the provisions that we've cited that accompanied the promulgated of the juice naming regulations make this as clear as day they do not represent a pronounce that for all purposes for all statutes the name on the name ascribed to the product is ok the in fact they say although for purposes of our forbearance under our government enforcement authority we will allow you to do one or the other and this is twenty nine one thousand and twenty nine twenty of federal federal register fifty eight we were in manufacturers that even compliance with this where there is a small amount of the non program and juice named has a great capacity to mislead and we encourage twice in the rulemaking we encourage manufacturers nonetheless to name the juices in the product under those circumstances the notion that congress intended this type of regulation to preclude a case in which and these are the facts as the court as they come to the court coke well knew and intentionally designed a label that in fact grossly misleads consumers to the economic disadvantage of the company that in large part created the market and the notion that congress wanted to allow the f d a to plot to apply substantive rules of decision in that very different inquiry using very different language in a different statute will be lawful that's correct it's just as in criminal criminal actions under the f t c as a and civil actions under parallel state laws and actions under the lanham act juries aren't required to work permitted to give prescriptive judgments all that they made all they do is make a judgement about whether or not on balance there is substantial evidence that the harm of the competitor a substantial number of consumers are misled and if so was it willful and that is no more of a problem in this particular case than it is in any of these cases whether they involve food or anything else in why it first is levine the plaintiffs had all sorts of reasons we thought sorts of different theories about what the warning label should or shouldn't say the jury simply decided that it violated the common law of the state of vermont to use that particular label and i'm sorry suppose the percentage were a lot higher as it was fifty percent show that a substantial number of competitors of consumers are not only misled but misled to the detriment of our product i don't i don't think we could establish it but the hoax argument and for that matter the government's argument with respect to the name itself would apply if all like the the eye dropper is worth of pomegranate juice that's in the half gallon bottle there were two microns i mean this that the question simply is whether a manufacturer like coca cola can design something that it knows runs a substantial risk quote from a misleading perspective and the evidence shows that over a third of consumers who look at this label believe that pomegranate and blueberry juice in fact are the majority juices but what it is where the what if it were the case that there are a very small number of people who are allergic to one of these ingredients i'm not suggesting it's true for all i know it's not but let's say there are a few people who are very allergic to pomegranate juice or blueberry juice sense of the f d a says if you put even dropper full of that in your blend you have to put that prominently on the bottle so that these people will not inadvertently get an allergic reaction and that you could you have a lot of act claim that well of course the  only thing that consumers know is that from the front label is that there is pomegranate arguably pomegranate juice and blueberry juice in your so the question would be whether they had to disclose on the label that there was also a point zero one percent strawberry juice or ninety nine point four percent apple juice that's the kind of judgment that we want the f d a to make because the purpose of the f t c a is to protect public health and safety what the a doesn't do particularly given the criminal nature of its sanctions is regulate or interpret apply its forbearance authority with an eye toward well what kinds of things are going to so mislead consumers that they think there's going to be a substitute in the marketplace where there is a woman i'm saying is suppose the case that for ninety nine point nine nine nine percent of the population the more pomegranate juice the better you just can't drink enough of it the more you drink the healthier you are but for this tiny percentage of the population it could produce an allergic reaction and so the f d a says you've got to put that on there even if there's just of pomegranate juice could you have a lanham act claim on the ground that farm for the vast majority of your potential customers they're going to be misled because they want pomegranate juice and they're buying the stuff that just has a little bit of it that well i think that the the vast presumably in that we're talking about a hypothetical regulation presumably the f d a would probably would promulgated a requirement that in fact you must name each of the each of the constituent juices in case there's an allergy i mean we wouldn't have an object in the argument wouldn't be that consumers are misled by that fact alone the what's misleading consumers here is they have no way on god's green earth of telling that the total amount of blueberry in pomegranate juice in this product can be dispensed with a single i drop or it amounts to a teaspoon in a half gallon and a has the f d a has explained in this case that it has no expertise it has no warrants to interpret or understand or apply judgments about what kind of words and symbols and repr and the combination thereof to use the language of the lanham act will have a tendency to mis represent the nature of quality of the goods from the perspective of the competitor and the  greed that if you brought the suit under state law it would be printed well i think it certainly would not be preempted under state law the state law provision justice kennedy is section one hundred ten thousand misbranded any label which is false and particular false and misleading in any particular that subsection is not even the subject it's excluded from the limited preemption provisions of the so it certainly wouldn't be preempted there might be an open question if one of the things that we were challenging in the course of that state lawsuit was the name itself and the question then would be is this name in fact compliant with the f d a regulation that we've explained in our brief that there are three reasons why it is not comply and in the united states agrees that a re would be appropriate in any case to determine whether it is complying but generally speaking our state law claim wouldn't be preempted at all not only is it parallel to the misbranding provision but the provision that it's parallel to is not mr chief justice and may it please the court i could start with the naming aspect of the case justice kagan you're exactly right we have a circumstance here where we have two federal statutes that cover the same subject matter that apply functionally the same standards to the same words on the same product legal under the f t c a we have an authoritative interpretation of that language by the f d a one hundred two point three three is the regulation that was reached after extensive rule making proceedings over the course of twenty five years the f d a considered the question that's being raised here it looked to figure out what an appropriate comment or usual name was for ages and that had a small amount of the highly flavorful and expensive juice and honor to allow consumers to know to prevent consumers from being misled as to the jews content of that particular product public health benefit authority to establish common or usual names of products in the purpose of that is to have some form of standardization so that when a consumer goes to a marketplace to purchase a particular product it knows what's going to be in the product in fact that was the purpose of the very regulation and issue here the idea being by allowing manufacturers to choose to name their juice product based on the juice that flavors the product as opposed to based on the juice that is predominant by volume that consumers will come to understand still go forward in the circumstances because there would be no irreconcilable conflict in the surely you the government is taking the position that each district to determine whether think that's inconsistent with the notion of the f d a having excludes going to force enforcement authority with respect to the f t c a this is still a lanham a claim to the only thing that's being enforced it's a lanham act the f t c a and the f d a regulations come up by virtue of the preclusion defense that's being raised by respondents here and so in the course of adjudicating that defense we agree that district courts can look to the f d a regulations to determine compliance of course by applying all the normal rules of deference that would otherwise apply difficult to work with what we're saying is that if the f d a or the f t c a provisions have specifically permitted something here they've specifically permitted this type of name in certain circumstances that that is something that should preclude a lanham act claim to the extent the  the we're drawing a distinction when we say the name we mean the actual words themselves pomegranate we're very clever blend of fire juices when we talk about the label more generally you mean how those words are presented on the label and other aspects of the label if i could point the court to the nestle a warning letter is discussed in a number of the different briefs and it's stated that footnote seven of our brief i think my colleague was going to bring it up earlier i actually think this letter proves that area distinction that we're trying to me what the f d a said in that letter was that the juice labels at issue there were misleading not because of the name but because how the words of the name were displayed on the label because the words orange tangerine for example or placed next to the picture of an orange because they were in close proximity to one hundred one and one of the label just had the name on it nothing else could they still sue that on the ground that the label was misleading not unless they're able to  point to something else on the label that was misleading aside from the actual words and the name the difficulty we have with the naming aspect of the lanham act claim here is the arguments that petitioners making that they should have instead named this apple grape juice that they should have  comments with respect to this particular regulation and the commenters at work consumers saying that they were concerned that they were being misled with respect to the juice contact with the f d a know about that i mean i would understand if it was the f t c years something like that saying we should know what that the f d a has only set a floor or instead has also set a ceiling that we're supposed to look to the process and figure out whether the f d a specifically rejected  more extensive proposal a more aggressive proposal now i think you look to whether or not allowing the plane to go forward would complement what the agency has done or would actually conflict with what the if he has done in here we think there is a real conflict we're not talking about supplementing the agencies in forcemeat research talking about the planting the regulatory judgment why it is i don't understand that why wouldn't it complement you've said here is the floor to make it not misleading but you know we're not saying that there are some things that you know wouldn't mislead a lot of consumers anyway and then the lanham act can come in and supplement that and really put us in a position where nothing's misleading at all for two reasons number one because the agency considered it that is what is less than one half of one percent and i think that would mislead consumers i think i think there's a reasonable argument that it may and if i could just go to the second part of my argument here we've been talking all about the naming part of the  of the claim at issue here we agree with petitioners that the remainder of the land in that claim should be allowed to proceed that it is complimentary we agree with petitioners that the ninth circuit decision here adopted an overly broad understanding of preclusion our spawn it suggests it doesn't defend the ninth circuit's decision here in footnote five but it's a little bit hard to see what daylight there actually is between the ninth circuit approach and that respondent respondent relies on the express preemption laws here but the express  much mr chief justice and may it please the court the f t c a does not deal just with health section three forty one makes clear that it also and with respect to the labeling requirements at issue here quote promotes honesty and fair dealing in the interest of consumers and here the most important data we have about what congress did that's barely been mentioned by palmer the government is the enactment in  ninety of the n l e a the nutrition labeling education act and it's express preemption provisions and justice kennedy are position is that if suit had been brought as a state law lawsuit it would be precisely preempted law claims because let's look at the language of the express preemption provision and to be clear coca cola is position is very narrow our position is that we're these claims that is making broad a state law claims they would be express preempted and it cannot be that congress meant to preempt these claims if brought as state law claims designed to go above the federal floor but meant to say never mind why that had to be i mean there are plenty of statutes which say you can't bring state law or federal law claims congress knows how to do that and instead it said you can only not bring state law claims in fact justice kagan it's very rare that congress actually says no state or federal claim so they just say no no claims or no notwithstanding any law to the contrary fair enough your honor but you have said in numerous cases in which you have found a prior or more general law narrowed by a subsequent or more specific federal railroad safety act expressly preempted state law and negligence claims and the fifth sixth and seventh circuits if held without a competing circuit that therefore federal f e m a negligence claims must be deemed to be precluded because otherwise the national scheme of uniformity in federal railroad safety would be undermined so to hear if i could just go back just askin for it to make sure i answer the question the passage of the n l e and its express preemption in labels the jeep the consumers like this one to justice kennedy perhaps come to mr waxman's attempt to argue his dreary argument here where on a motion to dismiss there is no record we've put in i really think it's important for us to know how the statutes work and if the statute works in the way you say it and the coca cola stands behind this label as being fair to consumers then i think you have a very have this label yes your honor it's changed in non material aspects there is no aspect havard by the claims here that has changed but i just want to be very very clear on what is arguing here is arguing just to sort of my are they are not arguing your hypothetical hama's arguing here it may challenge coca cola's name and label under the lanham act even if that name and label comply with the fed f t c and all the relevant implementing regulations are justice first justice ginsburg let me be clear safety is not at issue in this case safety issues safety warnings are especially carved out justice alito if there's a worry about allergies chief justice roberts if there's a worry about health that's not what we're about here in fact the n l e a especially expressly in sixty to carve out safety warnings from the preemption post we're not talking here about safety we're talking here about labeling so that consumers have adequate information at the same time as manufacturers are not put to the burdens and inefficiencies of having constantly shifting labeling standards imposed by juries which ultimately will cost more to the consumer well let's let's  tion and that's where i'm having a little bit of difficulty because it's not that you have to use the psni in your permitted to use this name under their regulations but why are you permitted to use it in a misleading way oh that's really the the i think the government's position which is if you're using the name in combination with other factors in a misleading way that's not a subject to the regulation just the name then it's is misleading because it shows products that have potentially nothing in their regulations say anything about igneous at how to display them it's nothing in the regulations talk justice so to my our there are five different attacks that palm has made on our label only two of which were addressed in the lower court and we say that we comply with f d a regulations as to all five of them but more important under state law it follows as a matter of inference from the national uniform scheme congress set up that lanham act claims are precluded to the extent and only to the extent the state names would have been preempted color and every one of those is out of the type required by certain a numerated sections in the n l e a express preemption provision and com want something that's not identical and justice ginsburg com doesn't just want to enjoin or label when justice ginsburg every single aspect of their misleading this claim is covered by specific provisions of the f t c a that have preemptive force under just i just want you to focus if nothing it set forth mr chief justice to me read brief it and i'm at page five a and if you look at the express preemption provision which is notably called national uniform nutrition label section two and have preemptive force under this statute and those are sections three forty three i and three forty three f name is covered by three forty three ah vignette is covered by three forty three because the federal as the federal register makes clear name and vignette we're just sort of together font size is covered by three forty three f which goes to the presentation of the name and other printed matter on the label multiple lines is covered by fort three forty three f and coloring is covered by three hundred three forty three men cannot guess who this is this gets you away from the argument you want to make i apologize for that but suppose we thought that the preemption provision here was utterly irrelevant that it applies to state law and not federal law and that you can't go around broadening the statute just because the perp this is behind that statute might be thought to apply to something else so suppose i just put that aside do you still have any kind of argument yes your honor we still win because of your more general approach to preclusion by one federal statute of another because the f d a regulations as to misbranding here are far more specific me back up the statute as justice kagan said before you are mr brandon for misrepresentations under the latin act even though coke has not been misbranded and has not made misrepresentations under f t ca and the f d a regulations that is a conflict expressly refers to maintaining honesty for the consumer as well as health but just let me suggest why there is still a conflict and irreconcilable conflict is not the touchstone you have never required irreconcilable conflict and in all the a conflict and there is a conflict here your honor to just be clear what congress wanted was national uniformity so that a manufacturer could print one label and sell in the fifty states and not have its juice legal when you leave on the flight in california the naming regulations as the us agrees why is that because the naming regulations just a sort of my r said you can name your minority juice or non pronominal in either of two ways you the manufacturer make either mention a percent that's what you want to sell you do not your honor we would want you to say that what misleading that's when it is defined by f d a in specific regulations pursuant to a specific statute that specifically seeks national uniformity in the sense that the manufacturer picks one label and doesn't as the american beverage association brief says it page seven create a logistical nightmare that you have to change your label in response to every misleading if it uses the word flavor and in fact over an eighteen a if you want to see the closest thing to have to express authorization of our label here it's the example that f d a gave an eighteen and it said you can use either a flavor or a percentage and it won't be misleading why because we don't think that consumers are quite as unintelligent as thomas think they are they know that when something is a flavored blend of five juices the not mine are the flavor i don't feel bad because i actually approve looks at the label and says this one is ok not only is it not misleading put it complies with all health requirements and because the  producers of drugs have the ability to change the label without f d a approval there was we found no preemptions and no one possibility how is why it any different the f d a here it's even worse this case the f d a doesn't approve the labels it never looks at them and says they're ok or they're not ok unless they decide to enforce the statute how is this better than why it should important distinctions yonder but let me first disagree with the premise it's true that f d a doesn't create approval label but they couldn't have gotten closer here justice kennedy then solving your difficulty by saying that raz cranberry juice it's ok if you call it raspberry ancram berry flavored trick you don't have to put the percentages in so this is clothes not a pre approval requirement these regulations are very specific just a sort of mayor wyeth as you said as this court said did not involve an express preemption provision it is the express preemption provision here that says that congress wanted nationally uniform labeling regulations whereby a manufacturer could pick one label and stick with it this  said excuse me we don't think bras cranberry is clear enough justice kennedy said it wasn't please change your rule making when the f d a issues guidance or changes its rules or issues some new kind of interpretation that's one here of course you don't want the f d a deciding is pomegranate blueberry or raz very clear on it on a base that's why they gave specific regulations and contrary to what mr waxman said it is not just have criminal jurisdiction it has adjud question i had the same concern and this is relevant because we wanted the likely intention of congress was with reference to these two statutes justice kennedy the u s position is unworkable as you said before in the u s hasn't said that they lack sufficient resources what we would respectfully suggest you look at is not f d a is latest amicus brief through the u s but f d a is authoritative statement about whether it's labeling regulations were being implemented in the red beef at page seven we cite to the rulemaking in which the f d a found after the three year study remember the express preemption provision couldn't go into force until there was a three year study by the i o m and if you look at page seven of the brief three quarters of the way down the page you'll see f d a in its authoritative statement irrespective of its amicus brief here found that three forty three f the presentation regulation and three forty three the naming regulation were being support well your honor they haven't disavowed that statement we would respectfully suggest that just as it's too late for mr waxman to change his theory as you said in riegle to a where in forcing the f d a theory and he doesn't purport to do it here it's the f d a the f d a it's too believe that lanham act suits are not preempted would not be preempted the state look leaves and therefore are not precluded as lanham act claims if they fall outside the specific provisions of f t c a that have preemptive force so three forty three eight may i finish if there is something that's not covered name vignette font multiple lines are covered if there's something else that's not covered and i would refer your honor to specifically to religious dietary labeling bottle container deposit labeling those are things that the f d a said in its rule making maced on the congressional record or outside the specific provisions with preemptive force then assuming there's no three three seven problem you could have a lot of that claim  capabilities it's in foresman efforts that had it simply was a judgment about whether the specific for regulations that they promulgated in fact adequately accomplished what congress is objectives the f d a itself has made clear not only going to brief in this case and not only in it's in for some in action in the nestle case but in the federal register or discussion of the juice naming regulation but the fact that the juice made comply and here it's probably doesn't make comply with the naming convention does not mean that it is misleading the f d a said over and over again in that rulemaking that we strongly caution manufacturers that in fact media compliance with this does not mean that the label is misleading and and that manufacturers are under an pages twenty nine hundred twenty nine one thousand and twenty nine twenty thank you and also indeed said nonetheless we encourage manufacturers to name all of the juices in a multiple juice product specifically because it was concerned about this now miss sullivan says well you know not all lanham act claims are preempt precluded they wouldn't be precluded if the parallel cognate state law up in force minute of an identical standard wouldn't be precluded this is it kate the closest cognate here is three forty three eggs which provides that a food is filled provision of the n l e yeah that one is a preemptive there is nothing whatsoever that preamps any person from going into state poorer and enforcing a state law provision is the point that is the point it's because there were concerns about health and safety with this juice naming regulation that they said in the exercise of our sovern enforcement authority we are not going to go after you for complying with this naming convention because as they've explained we don't know anything about how to protect competitors we don't purport to know what is in the competitive market place and we aren't about writing the regulations under these criminal provisions and the sullivan is right there are civil enforcement mechanisms but they're all in forced by juries  about competitors welfare or lack thereof but at least thinking about consumer understanding of labels so if that's the case is the determination under the lanham act different from the determination under the a very definitely and for for some of the reasons that this court discussed in the lexmark case where you were talking about who can sue under the lanham act and who is protected and the court noted that of course consumer confusion itself can be the engine for a competitive arm but the former is not what the way in america is about and the latter the f d a has made perfectly clear is not what the c is about and interesting we even with respect to this naming provision and you know we the government agrees with us far more than it disagrees with us but our disagreement about the preclusion of effect of their judgment is important you know they say ok we spent a lot of time of these regulations and we're entitled to chevron deference and we think they are entitled to chevron deference with respect to interpret ing the misbranding provisions that they are in fact that they do enforce they're asking as there submission here is not are not not just in an f d a action in forstmann action in court will we get chevron deference for our interpretation of what the meaning of three forty three i want it is but in a way in a bad case we get chevron on steroids definite deference we get to scholarship or commentary or case the thing that will certainly not in the way an amount context is no been no suggestion that they have anything whatsoever to say about the lan knowing the professoriate i'm sure there must be some commentary about whether they do or don't get chevron deference the miss sullivan says that they don't and the government says that they do and there must be a scholar at least on each side of that position but i simply don't know i'll make one final point if there is a lanham act suit and the regulation is brought forward to prevent the suit still you can still apply well i did write i think that it doesn't apply at all the government would take the position that it has precludes that authority thank you thank you counsel the case is submitted