y reasoned dismissive and ultimately inadequate denial which we believe should be set aside by this court on two grounds first the denial fails to articulate a rational explanation entities are very as we explained in the briefing certainly they are concerned about animal health and welfare as a corollary and each of them is concerned about the human health consequences of eating products such as force about that a little bit faster that's sort of one of the one of the i think most vexing procedural aspects of this case because as i understand it what happened is used you filed your motion for summary judgment right that's correct and you could get summary judgment you needed to prove that the plaintiffs had standing right not merely allege that they had had standing but prove that they had standing correct that's correct ok and you submitted declarations in connection with your summary judgment motion which was presumably your best evidence that the plaintiff had standing right correct ok so then in response to that the government files this motion for judgment on the pleadings but it wasn't really a motion for judgment on the pleadings right that's not a thing when it comes to standing it was really a twelve b one motion right a motion to dismiss the case for lack of standing now there may be a fairness issue there because the government didn't describe its brief properly and that might be something we want to bookmark but  at that point you know the government has filed a motion to dismiss for lack of standing it is appropriate for courts to consider evidence when deciding whether a  plaintiff has standing you had already put in your absence that you say was your best evidence that your clients had standing and so why are we speaking now in terms of the allegations that are made in the complaint why shouldn't we as to the individual so this is an expensive net spirit product if if we think they allege that they can't really avoid this product but to survive summary judgment for us to really go forward with the case we would need evidence to support that allegation so we would want to see that there it really is not practical for them to live their lives without eating flogger out because it's so pervasive everywhere they go to parties or whatever what if we say that we think that's that break the chain of causes and let's talk about the to say we can't avoid it i think i as a matter pleading it were only time that the face of the complaint and maybe that's enough but i would think to get past pleadings we would need more i would think we would need menus are paid for statements about what the ingredients they use i mean she would actually have to show evidence that what she goes these events was served and it's not visible and it's not labeled maybe she could show that but maybe she can't that's why i'm asking you because i can't personal knowledge of how to find out where that you can and you plan to sometimes it's extremely difficult you ask a server the server might say yeah you terms later she was wrong but isn't it a lot harder for you to avoid gluten for your daughter than it would be to avoid flogger offer your daughter i don't think that's necessarily the case what i mean maybe even say you could provide more but can you explain to us maybe what it is that you could provide that would to what's important is so you said before you've already submitted all the evidence that you could do you want to reconsider that i mean should is there a reason to remand this case it would do you feel like you've already had that opportunity or not i think we've had that opportunity and i think we we did in mind is that we need one plaintiff and so you have seen for this case to move forward i think the two individuals who are trying to avoid the consumption of the future may not be pretty well in the other thing is that is that you know i mean with with a lot of products the problem is with the labeling right and there there's you know there might  be milk out there that's treated with you know with that made from cows treated with the bovine growth home or melon and milk that is comes from cows not treated with the bovine growth hormone and without labeling we don't know so we drink milk and milk as a ubiquitous product and we can't tell whether we're getting the allegedly bad milk or the allegedly good milk i mean here we're just talking about somebody a corporate attorney at a reception declining to eat while gras i mean how if she chooses to eat flog raw she's broken the chain of causation she's injuring herself it's not the government that centering her i don't believe that's the standard that set forth in the case i think the plaintiffs are not required to forgo lawful activity to avoid something that they essential assuming for purposes of the argument but if you've got your way they would still be forgoing far far grob because you're trying to get well broadband so so they're foregoing something that they or that the rule making you're seeking would be limited to one kind or the other or that there isn't even is one kind or the other available in the united states certainly her intent was for barbara i also and is there any debilitating effect health effects are caused by the pathological development of the liver and there are numerous examples of distinguishing between what constitutes a plausible versus a logical development allege both the individual and the organizational plaintiffs is simply too speculative to to support standing under article three well they're citing ok they have a complaint that cite medical studies that there are in mice but at least at the pleading stage which i take it is what you have challenge so far isn't and they haven't they said that there is medical evidence that this could cause a health a fact and all climbers is this type of help in fact and we think there's an increased risk that were subjected judgment motion so they have had their chance to to to show an adequate injury in fact and they haven't done that either but your argument so far and maybe we will decide to consider that but your argument so far has been the state of the pleadings right you have not said that what they're alleging is false you're just saying what they're alleging is not a not well that that is that is true but we don't really we don't see how the how of how they could really how they  isn't it yes but there that there there has to be there still has to be some concrete showing of of a likelihood of an injury and there's there's there's none with respect to to to to force fed flogger well how do we know recently held that was that that was not adequate under power in our d c or any of the second circuit cases that they were relying on those are not even the law of the circuit but again th up question about causation but i'm not it sounds like you're trying to say there's an implausibility about the injury and they've got a medical study and i don't know of any rule that says you have to produce five medical studies or you have to show one person out of how many guys or anything that really they haven't at least methods rational requirement here i would i would i would certainly not concede that the medical study the solomon study actually is adequate that it even says that there is that there is an injury at the most of it suggests the need for further research and the possibility but there is nothing the least bit conclusive about the language of the software but it but it doesn't to to show likelihood of injury certainly there doesn't have to be conclusive proof that people are going to get hurt and it isn't a kind of a dangerous road for us to go down to be assessing scientific evidence to decide whether it leaps over a certain hurdle for purposes of you know determining whether the risk is significant enough to to create i mean aren't you on much better ground arguing causation is really a longwave well i'm certainly we certainly believe that the causation  causation requirement also cannot cannot be met what about for the organizational plaintiffs because we so far we've spent all the time talking about the individual plaintiffs and i wonder if they might have a slightly better argument for standing with their organizational plaintiffs at least under the law of this circuit as it stands now i'm on the one hand to me it seems pretty troubling to just say well anytime an organization puts forth a declaration which says that this is relevant to our mission and we've had to divert resources as a result of the government's unlawful action resources that we would be spending on other stuff related to our mission that that's enough for for an organization to have standing but it seems like under current law of this circuit view the government isn't doing its job adequately well no no it's not just that it's part of their mission but it's part of their mission and they have to divert resources to fight the what they contend is unlawful government conduct that they would other resources that they would otherwise be using to do something else germane to their mission i mean you're saying there's in addition there's a requirement additional to that or for use that's the requirement that they have to satisfy and they haven't satisfied  they submit affidavits and say one of our purposes is human health we also have animal welfare as our purposes because the government hasn't regulated this we are fighting this issue that's taking resources from other things haven't there in the in the context in litigation brought by l d f making this this very type of argument in the court held that if that if they don't do their theory that would mean that whenever an organizational plaintive challenge government  would hold that there is standing  recall that case in particular among the among the ninth circuit standing decisions but i i don't think that what about fair housing of moran versus colmes i don't think i don't think that these are that they are really  that they're primarily engaged in is animal welfare and this is this but i hate to say that that's not their only this and that they're also interested in human welfare and human health so once they say that and they swear to it how is that not an allegation that's enough and how are we to figure out any more than that any more than what they say they're missing is that isn't that what their mission is and how are we supposed to say that's not true well again looking at that look you know on the face of the complaint we don't think that they really even alleged at all at that clearly that they were focusing on human health and there was a there's a they use the phrase animal welfare and health and then they interpret the second the word health as referring to human health but they but they submitted i mean this gets back to the issue that we raised at the beginning right is that they filed a summary judgment motion and they submitted what they now claim is their best evidence in support of standing in connection with their summary judgment motion and the government at that point i mean if i was representing the government at that point i would immediately notice the depositions of the deck lorenz i would have done a doc would have done a discovery a bunch of discovery request designed to get any documentary evidence that relates to their assertion that their mission is really about putting adult avoiding preventing adulterated food from getting into the food chain as opposed to animal rights or whatever but the government didn't do any of that the government just responded to this evidentiary submission by the plaintiffs with a motion for judgment on the pleadings and talked about how the allegations weren't enough and i mean if we think that it would have been appropriate for the district court to consider the state of the evidence and if we think it might be appropriate for us to consider the state of the evidence at this point why doesn't the why isn't the state of the evidence pretty bad for the government given its failure to test any of the allegations in the declarations   the parties individual or organizational and of what do the declarations show purport to show that if they were not fighting this battle they would be fighting another battle with respect not in article three it's not an article free inquiry because it's prudential so are you conceding at this point that's a hassle or issue was decided incorrectly luxury product that if it's easy to avoid then we expect people to really think gaijin some minimal effort to avoid it before we ban the product for everyone well i'm not aware of an exception for high level or  on the consumer of the product and to take another point this i'm sorry you're out of time all right thank you very much argument counsel