know how much taken is in the actual can now each sixpack has a twelve point five six twelve point five ounce cans inside of each can there's only seven ounces of chicken and it's swimming in five and half ounces of water and that's not clear to consumer who's walking down the aisles now but if the consumer looks at the back of the canned wouldn't it be clearer than what it's like distinction here the package that wraps around each of the six cans is opaque and it has a different nutritional facts label than each individual can now the outer wrapper has a nutrition facts a well that says two ounces drained now the fenice have said that this disclosure at the back would clarify the fact there's only seven ounces of chicken in each can because of the twelve point five ounces coach on the front now if you're in the aisle and you're looking at this package you have to figure there's two ounces in each serving but this outer wrapper tells me that there's twenty one ounces in all six cans so you have to multiply two ounces times twenty and twelve ounce can so i think that this is a lot of steps that need to be going through for the consumers minds to determine this not words that nowhere says anything like seven ounces of meat per ca does not your honor now and i know that this is misleading the word problem for a sixth grader would be something like cuss go sells a six pack of cans of chicken packed in water with a total net weight of four point six pounds the label on the back says a pencil and paper any sixth grader who's in the top ten percent of his class could probably do that and i think an important thing that you want to know to there is that it's as drained it has drained on the back of this a drain on the front and somebody somewhere thought it was important to note that this is a drained weight this is not the total weight of the chicken in the water per serving so i guess that would be something like three ounces per serving if you kind of both a chicken in the water and a product basis in the can but that's important information for somebody and it's not on the front of now i think it's important to look more broadly at that review process but i think an important supreme court case that elucidates the review process here is based vs dial in that case is  was evaluating a label on a pesticide pursuant to fit for now that label was reviewed for the contents of the label it wasn't necessarily reviewed for the efficacy of the pesticide at issue but the supreme court noted that the states could have a claim that terms that had the same unfortunate as the standard in the federal regulation the example that they gave there was if the state law claim was that the font had to be read in a certain size that was ok as long as that was exactly the same regulation as the federal government at the state could have forced had the particular label been approved it had been approved it had not been approved as of the efficacy which is a distinction that defendants have made but that is irrelevant to the content of the label itself so that it's gone through that proceeding do you understand how this procedure works because i don't frankly the looked at the paperwork that was submitted with the application it's not clear to me that an actual can of chicken accompanies that application do you have any is there anything in the record that would answer that question but this is a motion to dismiss at the moment your honor and so there is not a fully developed factual record but my understanding is that the actual physical can is not sent to the office i asked but a representation of the label that will be applied to the can is sent but where where or how would we get to consider any of this information i mean did you  the regulation so we're being asked to take judicial notice of the process and to assume as some of the courts have done that if the can is on the shelf it must have been provable must have excuse i got a hole punched through the page number but it's in the joint appendix how did that get there so you are on the motion to dismiss defendants filed a document purporting to be the label that was submitted and requested judicial notice of that document the court put in our opposition papers we know and the mission dismissed below we noted that there is something consistencies in the document itself then in the reply brief submitted by the defense on the motion to dismiss below the attached another document and do you understand and one of the pages that paperwork there is part of the form asks about processing procedures and step one is that the chicken is injected with marinated to target pick up of twenty percent is it your understanding i guess i should be asking cost go with their argument has been trying to figure out if you know what his argument is is it your understanding that the argument is that the chicken itself is no more than twenty percent water as opposed to the contents of the can is no more than twenty percent water because then there's a later step in the process that says flood cans with appropriate percent i was i guess we'll ask them what their theory is but i notice that you didn't say anything about that and so i was wondering if you understood that to be their theory or not very clear and i think your honor in the  dismiss defendants noted that in order to prove that they satisfy the requirements of the regulation that we could do that through discovery again that's not a person a motion to dismiss so maybe these answers could come out we could find out exactly how the process supposedly satisfies this if we had discover if we had discovery but we haven't heard a clear articulation yet about why they independently satisfy the standards as articulated by the us to me ask a question just independent of the labeling claim i understand that you have a separate claim that i guess is called a slack phil claim in other words that there is something misleading about the presentation of the size of the can that might lead a consumer to think there is less chicken in there can you articulate that and how and whether it is free standing from the labeling claim is not necessarily free standing your honor i think that of talks about how we need to look at the totality of the circumstances regarding the product that the consumer is purchasing and if you look at everything together you look at the fact that the label doesn't disclose how much water is in there versus how much chickens in there the fact that it's a pretty large can it's twelve and a half oun that's not a small hockey puck they might get fur like a tuna can right it's a larger can than normal and it's heavy you pick the whole thing up the overall impression is what i was trying to get to with respect to the argument regarding sackville that a consumer would not be expected to understand almost half the cannister chicken is water sorry almost at the end of the water often in the slack field cases there's dead space in here there's chicken and water but no claim of other dead space and i guess the question from a slight hill perspective is if you're allowed to consider the back of the point is that insightful for the air as it is nonfunctional is not a purpose it might be fun it's only to be sent that is nonfunctional correct and it's not useful to the consumer here the instructions that costco gives to consumers to drain the chicken is supposed to pour the water down the drain that is water that does thank you good morning my name is bill with roe i represent tasco in the spiel i'd like to began by well let me back up and say there are three reasons that we provide in our brief for affirming the district court  i'd like to talk about the one that has i think drawn the most questions this morning and also the one that is provides an independent grounds for affirming regardless of how you view the express or implied preemption arguments and that's really the point that he makes initially where he says that the consumer doesn't know how much chicken is in the can and that's really just not the case and that's why the district court judge dismissed the state law claims on the merits now there is information on the outside package this is six cans wrapped in a shrink wrap something on the front something on the back in there stuff on the can itself once you open the package what we're doing in this case is relying solely on the information that's on the outside of the package and what on the shrinkwrap that's correct  honor and so what it says on the front is that it's premium channel chicken breasts with water so i mean there's a clear the nomination on the front of the package that this product has water in the can secondly on the back on the nutrition facts section on the back of the shrinkwrap it says that there are twenty one servings two ounces per serving of drained chicot now of course the consumer looks at the nutritional information for things like how many calories are in a typical serving and is there too much salt for my doctors recommended diet i get any protein with this and that sort of thing that's what nutrition information is on the label for is it not well now i does it i mean in other words is the nutrition label where you look when you're buying something in a grocery store to determine how much food total is in the can or yes your honor i you know anybody who does that really well i don't know anybody who buys a suit you do well you're on it look this is the standard here is that of a reasonable consumer and the reasonable consumer looks to the nutritional information in order to do a math problem to figure out is the canned mostly water that's what you're telling me that's what that's what the reasonable can with a reasonable consumer would look to determine what the net weight of meat in the can is well yes your honor i do think that's right i mean you have to put this information on the package it's required the net weight is required by federal regulations you were required to list the net weight and where the product is a mixture of solid and liquid the federal regulations require you to list the net weight which this package did six again tell you where to put that information now your honor doesn't say it just says it has to be in the one thing the courts have said is you have to look you can't look at just one tile in the mosaic you can't look just at one snippet although in this case the name of the product clearly indicates that there's water here but the name of the morning to the p p regulations perhaps it should be chicken with forty four percent water is that not correct no your honor i don't think that's right is and is that i understand the argument correctly because it's not very clear in the brief is your argument actually that the only water that counts is the water that's injected into the chicken in the form of marinate according to the processing formula is that what you say there is less than twenty percent chicken now your honor when that if you look at the form that is a part of the reply from by the way the issue that they had with with the copy that was initially in the records that was missing two pages that's our fault that's on us but then in the reply brief we submitted the entire complete copy and i looked at the entire complete so you can tell me anything you want to tell me and i've got it right i am so glad you did because what it says is that and this regulation deals with the product formula when the when it is prepared when this product is put into the can as the form indicates it is eighty three point three percent chicken when the meat is put into the can the meat is eighty eight percent to eighty three point three percent and then whatever is poured in water the rest approximate sixteen point seven percent of water and other angry to me why is that not part of the preparation since preparation is defined in the regulations to include the canning right well the reason and this is again not evident but this is the sense of the regulation is this is a product the chicken is cooked it is chilled it is put back in the can the chicken meat is there water is added and then the can is sealed and then it goes through a cooking process and that leads to the to the reduction that's how you get from eighty three point three percent when it's put in the can then the can is cooked and heated that's what gives it the long shelf life and is yes it is heated now again that's not in the record i'm not suggesting it is but i'm says that that you put chicken and you inject marinated with a target of absorption of twenty percent that's what it says and what you submitted required submitted to the f s s right so it is the i guess i'm trying to figure out is that why it's eighty three percent chicken because it also contains water inside the chicken itself it contains marinated yes names marinated the content of the chicken at the time it is placed and there a three point three percent and then there's additional water and other things added and then it goes through this it's actually called a retort process where it's heated and that's what gives this product that extended and then it's flooded with an appropriate amount of water that's right is there a there or would it with the heating process not work properly well we've gone way past my limited understanding well i'm just wondering whether all of this is stuff that we should know about and i don't blame you for not knowing it  but why isn't there why isn't it appropriate to have some form of discovery process to allow us to better understand what the fs actually does when it approves a an application like this what the regulations actually are understood to require by the department of agriculture we don't know any of this what we know is that we've got a can that is more than fifty percent filled with water that as far as the consumer is concerned play is is not is not part of what they're buying because it's supposed to be drained before before use right this isn't chicken broth that the consumer is expected to eat right that's correct but here's why i think you don't need to reach that and you're correct we could have had a much better developed record u s d a lives in these plants that everything is controlled by fs i say everything is submitted to me this is a highly controlled and we know it is but does not signify approval with the compliance with the p p i now i don't believe so your honor i think what it means is you've had the label of proven you're going to have to continue to comply with the law but here's why i don't think we get to that point why we don't need factual development in the record and we'd be happy to do that but it's this the packaging says there are six cans with twelve point five percent net weight we know that's seventy five ounces we know from the back of the label and yes it's on the back but it is there that there are forty two ounces of draining chicken meat in this six pack if we that we know that not because it says that anywhere but because someone has to do some math and figure that out right it's right in the math maybe but math yes that's correct your honor but it is much more simple than what they are proposing what they're saying is that the consumer would be better off if it said fifty percent chicken and so then the consumer has  saying is that the egg draws a line at eighty percent and if you've got essentially less than eighty percent solid you've got a more prominently disclose the relative percentages that's in the preparation process not to the percentage when the canis open and that's the difference  reparation why should we make it legal ruling that the preparation process refers to the cooking of the chicken before it goes in the can rather than to what is actually in the can i would have the regulations as i read it say preparation includes and counting so why isn't what matters to the consumer not how much chicken there was before it went in the can but how much chicken they're buying well that's true and i'm not sure the purpose of that regulation relates to consumer disclosures but again i want to if you'll permit me i'd like to go back to this one point and that is it's a very simple one there is information on the front and back of this package that would allow the consumer to understand there are seventy five ounces of chicken and water and all of that total for the only forty two ounces is drained chicken meat the consumer has that information at hand two times twenty one is a lot easier calculation than the one that they would have to use employ which is ok there's fifty six percent so now i've got to multiply six times twelve point five net ounces per can it gives me seventy five i take fifty six percent of that and that gets me back to forty two there there are there disclosure that they are suggesting that the core is much more complicated it is not helpful and in fact it is cumulative of all the information that's already there on the out and the outer package of the  of the container because one of the great because we've been focused on the substantive compliance issues you really haven't gotten a chance to talk about preemption as  such right and so i would be interested in understanding whether what it is that is inconsistent between what they're asking or what they're asking us or  e jury or judge below to decide is a misleading under state law what is inconsistent between that and the federal regulation how are they asking for more than the federal regulation required because and this is an important point this is where the district court ultimately came down he said forget about whether this is an authentic copy of this filing with the food safety and inspection service we know they are not challenging the fact that it was approved and the label last submitted was approved and so they are what they are suggesting is that by not interesting enough not as a function of state law but they are trying to play in least able to be requirements using that as a predicate for the state law claim but they are their result here the relief they seek would clearly call for this label to be altered and changed they want that fifty six percent or forty four percent water disclosure on that label that makes it a different label and then as wine is expressly printed ok so it's created by the approval is really the key correct and that's what the case is the case is say that if there is an approval by the federal safety inspection service i'm sorry food safety inspection service then that that constitutes sufficient approval for purposes of of experts that would not preempt a state claim that's based on more than the label that's correct your honor and that's the  thing that we want to emphasize here the states are free entirely free to provide any kind of remedy that they want for fraudulent labeling however in the case where the label is explicitly approved by the u s d a in its division if then those claims are not allowed on preemption grounds for the states are free to provide whatever image they want for fraud other aspects of fraud in connection  dealing with these issues the only problem here is that they pick the claim where the label is very clear in no reasonable consumer could say i didn't know that i had forty two ounces of drain chicken in this package that's what it says on the back and missed with it would you have any objection to our asking the department of agriculture to weigh in on what they think about this preemption issue not at all your honor we will do that in american teddy as i recall and as it turned out it wound up being very helpful to  d because the department of agriculture agreed with their argument and laid out much more information about how the approval processes worked in that case i think i do organic  that's now we would welcome that we you know this process is owned by the federal government the client wants nothing other than with these people as as i say they are there every day in the plant they just want somebody to tell him what to do and that's what they think they've done here may i ask this this goes presumably will be on the record but i can't resist asking why is there so much water you know i really wish i knew the answer to that all i know is that once the product is put in the can again it is cooked in that is chilled and then those contents are put in eighty three point three percent neat which is injected with  so there's going to be some more string there but that's eighty three point three percent and then the rest of the ingredients are put in and then the can to see old and then it's heated to give it this incredible shelf life that it enjoys that's that's the process and so you start with eighty three point three percent and after you open the can you get the fifty six point sense and there's there's really there's nothing you can do about that process i mean it's going to look like that every time and i think thank you so much prove would you have any problem with ever asking the department of agriculture for their views no not your honor i think it's important to start a kind of last point that we discussed there regarding the preemptive effect of the agencies review of his own regulation now again i mentioned before base versus regarding the fifth statute as evaluated by the e p a and the supreme court there found it was pretty clear that a state court action would not be preempted as long as it regulation that was applied in labeling approval the label approval here i don't think rises that effect or does it is this product specific regulation in and of itself in that review the regulation is the generic requirement that i believe so and in part what was discussed with the u s d a and i think it's also important to look at the fs i asked the structure as a whole perhaps we'll learn more about it but here the f s a assets determined that they're overwhelmed they've got more than one hundred thousand labels a year they go through an defense i said that this one was and i have no reason to believe it wasn't but i don't see that so accepting defense argument here this entire structure would preempt any claim against a vast number of labels that were never seen by anybody because they were supposedly reviewed because f s s is determined that that is how they want to know that's who's ever knew was that his problem is not i mean frankly it may well be a consumer problem your your argument is then therefore you have to let the states regulate well at that point it does become a determination of the force of law that should be preemptive for example you have ceased vs meet the court found that when custom service was making a determination of how to apply the tariff they said ten to fifteen thousand determinations a year was a very large amount the strained credibility that that could be considered a force of law here if you have such a large volume where they don't even seem by the agency that should not be a force of law but i don't see why i don't think they're arguing that if they had been if they didn't have the heart healthy label and therefore they didn't have to and did not submit it as i don't hear any claim by costco that then the determination would have the force of law that would be a non determination in was but that's just an assumption we're being asked to take judicial notice of the idea that this was and throw out your lawsuit on the ground that this label was approved by the fs yes when the complaint doesn't say so and the reason we're supposed to take judicial notice of it is just hey we sell it so it must have been approved because the law requires it to be approved which is an interesting point but i don't think they're making the claim that  anything anything that appears only ten is constructively approved by the fs even if it was not submitted they haven't said that it's not their claim and i think us implication of their claim that because it's gone through the process  set up that it would be preempted i can't put words in their mouth but that is the way that i read the argument about i've highlighted the fact that that they claim that it was reviewed that is not necessarily preparation the can itself again this is more detail than i've heard before and this is something that the feds have conceded would be necessary to go through discovery to determine that the preparation was actually in compliance with regulation other information that i might like to see discovery would be regarding whether or not costco had any internal documents we should respect to whether or not consumers were misled there are other things unrelated to the state law claim such as the number of cancer result there's a lot of other issues that would be what is an appropriate amount of water with which to flood the can by tuna fish packed in water and some little cam like this and once upon a time it was seven ounces but you know how that goes with inflation now it's about five but it just has enough water to kind of cover the tuna fish in the can and would be interesting wouldn't it to you to know how the decision was made that this needed more water and did it need more water than just what would cover the meat and keep it wet i actually do have some interest in industrial processes in how these things happen and why and i don't know yeah me too but that's not the point i think the question is would we be interested in knowing that with respect to whether there was some misleading going on if there is no function into the water actually as compared to if there is some sense of the that there be that much water in the can in order to accomplish the preservation and yes yeah thank you thank you both will reserve decision helpful arguments