emphasize a couple of points this morning in the time that i've got while the district courts have tended to break this down into two different issues the plausibility of the meaning of diet coke and the persuasiveness of the scientific studies that we offered to prove that diet coke not only will not help you lose weight but will cause increased the examples the complaint suggests that diet coke implies certain things the coca cola company says we have other definitions that suggest to the contrary the district court picked the ones that it liked and said this is what reasonable consumers believe even though we have submitted a study of over six hundred people who say that they expect that diet coke at least will not make them gain weight seventy seven percent of them say that fifteen percent of them say that they expect it to help them lose weight now some of those people are going to be reasonable people in terms of the scientific evidence because time flies the just recorded the same thing it's suggested that in all of these studies we all of which contain as good scientific studies do a caution they are not necessarily the final word but all of them find an association between consumption of this ingredient but  in that event it's brief they go through page twenty six the twenty seven all the studies where it is that is and they'll say there just hasn't there isn't even an opinion now th read the studies and we cite them in the complaint and in the brief says well there are number of them there's there's one of them and i'm not going to look it up for you right now that says we have adjusted for all of the other things and and this is so ca is plain this isn't a stage that you do that you get experts to say what scientists considered to be persuasive you have this bradford hall or bradford hill nine step analysis you do with epidemiological studies none of that was done here what the district court did here was to say these studies don't say coke and definitely causes this and therefore i'm going to ignore them and that's not proper under this court's opinion in andersen news and more important under the supreme court's opinion in the matrix decision the brief cite to both coke has addressed neither one of those opinions in the matrix decision which was a securities case where the question was whether investors would consider important to know that taking a cold remedy might cause you to lose your sense of smell the science was contested just as it is in this case the defendant said the studies don't say that it is fair for the defendant to say this in fact a defendant should say that a rule twelve motion you believe the plaintiff and then you move on to discovery you move on to your dobe or motions you move on to summary judgment and potentially to trial you don't try the case on a rule twelve motion and the language of it by all the language of the language of all of these cases makes that quite pla section that says there was limited evidence for the effective non nutritious of nutrition sweeteners on b m i why isn't it fair game and if you if you refer specifically to a study you quote from it and they say well but that's not what the study says of course they can and and at some point the court or the jury is going to determine the persuasiveness of that whether the study because the study does say what we've cited it for as  well you just don't do that at the stage of the case you do that later on there's a procedure for this it's been developed over centuries with forty one seconds left mant please the court jane metcalf from patterson belknap for the coca cola company the district court here should be affirmed because this court has already considered this same set of allegations twice in plaintiff's coun parallel cases against pepsi and dr pepper and found them insufficient because they failed to plausibly allege a causal relationship between diet soft drinks and the risk of weight gain or of w summary that's correct your honor they they did however dispose of exactly the same pleading except for the fact that they were against diet pepsi and diet dr pepper so two different panels of this court as well as five district judges has looked at this these allegations regarding the scientific studies these precise ones said these are not sufficient they do not support even a plausible in e of a causal relationship between diet soft drinks and weight gain and so the plaintiffs just have not plausibly alleged their claim there's no reason for a different result here these are this is exactly the same set of scientific studies these complaints are three of a kind were all filed the same day on the southern district in the southern district of new york judge dismissed for this reason this court affirmed by summary order and denied rehearing judge daniels dismissed for this reason and the court again affirmed by summary order so if these if these allegations were insufficient when they were brought against pepsi and insufficient and they were brought against evidence and here the plaintiffs contention was there is a causal relationship between diet soft drinks and weight gain and the allegations were referencing all of these studies when the district courts looked at those studies took every word of them at face value many of them said please do not quote us from the proposition that diet soft drinks cause weight gain we are not establishing that none of them actually endorsed a plus a connection a caus of any kind between diet soft drinks and weight gain at best they said we have absolutely no idea whether there is any such link so this is not a situation in which the district court looked at studies weighed their credibility said i don't like the methodology of this so i'm going to lay it aside and not credit its conclusions that's not what happened the district court took every one of these studies at face value and on their face they said we are not saying and we are not even endorsing is an unproven theory that diet soft drinks cause weight gain and if that and yet they weren't that those were plaintiffs allegations in support of their contention that diet soft drinks do not know that the plaintiffs have not alleged that any comparative effect of diet coke versus regular coke and weight gain what plaintiffs are claiming is that diet coke has a caus was a function of the weight gain but their argument is that despite the fact that it has no calories it can enhance weight right that is their conclusory statement but none of the allegations or the studies supported the studies incorporated by reference has endorsed that even as an unproven theory or even with a cautionary note we think diet soft drinks cause weight gain but we're not sure because that's not what they say they say we don't know we're not saying the conclusion that they're urging my right exactly or are there are also two alternative grounds to affirm that are discussed in our brief but the court need not reach them the court in the addition to being insufficiently pled also preempted by the food drug and cosmetic act because there is a specific provision in section three hundred and forty three hour which has preemptive effect that governs the use of the term diet in soft drink brand names and with which diet coke complies and there are also f d a regulations setting forth f d a determination that diet is appropriately used on low calorie and reduced calorie suffering's those have preemptive effect the nutrition labeling and education act loses any state law that is not identical to those preemptive f contrary set of requirements for the labeling of diet soft drinks but section three hundred and forty three r two d which governs here says if you want to use a term interim diet as a nutrient contract content claim you may do so if you were if the product was on the market before october th one thousand nine hundred and nine complied with  definition of diet as at that time which was and actually continues to be lower calorie soft drink and earlier lower lower reduced calorie got rather and you have already had this term diet in your brand name in those instances the sort of default prohibition on nutrient content claims in section three hundred and forty three dollars are doesn't apply and so it laid out these criteria under which the use of the use of the term diet is permissible now plaintiffs have come in with a new set of criteria they wanted to satisfy their own definition of diet that is exactly what the f t c expressed preemption clause prohibits but you didn't  presented to this court but i see i'm almost out of time so i'll just wrap up by concluding that this court did not reach the preemption issue it can dispose of this can and should dispose of this complaint on the exact same grounds that it has disposed of two identical complaints against diet pepsi and diet dr pepper so we asked the court to follow those decisions here thank you very much circuit losses if you don't cross appeal you can't raise it unless you've got exceptional circumstances there aren't any here we've discussed it in the briefs coke isn't even pushing it today preemption has been uniformly treated as not applied to will in these cases i promised the court that i would not read from a study but i'm going to anyway paragraph fifty one of the complaint on alpha twenty five of the record a twenty eight year follow up study adjusted for virtually all contrary factors says we consistently found the low calorie sweetener use associated with weight gain and expanding waistline i'm sorry what are graph fifty one of the complaint appears eight to five and they the nd and rd lunch we consistently found low calorie sweetener use associated with weight gain and expanding waistline  let's talk about all of the other cases briefly because there have been five district court cases and two cases from this court which are breached the opposite conclusion i was sort of expecting one of you to say where you've been here young man and the answer to that associated with weight gain and expanding waistline right that is correct your honor but that associated with doesn't tell us anything about causation statements anything that would would plead causation we all know i would refer the court to the supreme court's matrix decision which included fish studies what we don't know it's exactly right this is that is exactly right your honor and it is my hope point here this is something that is supposed to be developed cause there's actually  i don't expect the court to read all of these studies it would be improper to do so at this stage but there is a phrase for that factor for that do you drink diet soda because you're fat or are you fat because you drink diet soda and the scientists and this could take what is that phrase i don't know your own eye for this particular study the key a study in paragraph fifty one here has adjusted for that factor and for many others ok the time for deciding how persuasive that is comes later it doesn't come now the two summary opinions of this court we can only assume were deliberately written as summary opinions so that they would not be binding on other cases the district court cases i regret are just following judge alice up over the cliff he wrote the st one out in california and coke diet coke and all of the former ones written after him have just copied his analysis i ask this court to please stop that chain and