preemption issue involved here because we allege a violation of federal law that concurrently also violates state law and it's the state law the unfair competition law that gives a standing to prosecute the violation of both matter of enforcement scrushy it's not legal to drive sixty six and sixty five zone you're not likely to be pulled over you most certainly are not but that doesn't mean that it is legal to do so same thing with federal marijuana you actually you're makes an apples and oranges there and this is this is an agency that's designed to determine when something is unlawful and cannot be distributed or used they made a determination that they're going to give people a chance to get rid of these trans fats and over time over three years to get rid of their inventories and so on that's not a sixty five sixty six mile an hour analogy they're simply saying we made it germination going forward this is this is probably good to just face these officers we're going to do you're directly whether or not a substance is legal to use f d a determines whether or not a substance is generally recognized the safe and what it said it it's twenty fifteen order was p h o are not grass for any use in human food it is congress that has and indeed did determine that food additives that are not grass are unlawful to use the f d a simply lacks the authority to say you can use it what it can do is say we're not going to enforce this particular  and in the confines and in the sea well the f d a actually address that issue in its twenty fifteen order and what the f d a said is we know of no express provision that would preempt state law limiting or even prohibiting p h o in food and  you shall not deem foods who use p h o adulterated and the language of it supports an interpretation that it it is binding on the secretary of h h s which is how it regulates the f d a and there is again no limitation they knew the f d a they explicitly refer back to the f d a final determination in the writer and nonetheless with that statement that there is no preemptive that the f d a does not believe there's any preemption they nonetheless did not say state law is preempted and what's amazing is in the same way all the ca of twenty sixteen section one await there's an express preemption clause two weeks after the ca was pas there was the microbe huge water free act and congress put in an express preemption clause that says header preemption and it says exactly what state law is in there but looking at this how one city mozzie existed prior to this final determination which is a problem to have stayed on the other states i mean california which already had some statutes restricting transplants is that this is a common occurrences of well known that the states were already in the field of regulating the f d a spent more than two years on its twenty fifteen regulation and reviewed hundreds of comments and it's that docket for this particular food additive petition was had thousands of entries and many many scientific papers were made by the f d a so it was fully aware that there were many different regulations and they are definitely exists outside the regulations that already existed yes in fact there is a city regulation whereby a co counsels located in cleveland says a trans fat may not be used in any  way in restaurants and california has it for schools that very explicit however we you know to get back to my other point my secondary point i guess is even if they are allowed under federal law because of the twenty fifteen because of the ca most of our class period predates that the state regulation before the twenty fifteen final determination and then later the c a was you had two options you could file throughout a petition or you could determine on your own whether or not trance that was generally recognized as safe in this case the defendant did not try to make that determination on his own which we allege the defendant did not make that determination on its own and that allegation has to be taken as true if it had done so if it had looked into in two thousand and eight when the class period begins whether or not trans fat was generally accepted to say it would have determined that it's not and because of that i violated both state and federal law this is the state of scientific knowledge in two thousand and eight or thereabouts in two thousand and six an author from harvard medical school published in the new england journal of medicine the following the evidence and magnitude for are certainly harmful their obligation was to ensure that there was a scientific consensus of safety one year into the class period we have a publication these are certainly helpful by one of our highest ranking doctors and government in even going back can i go back in and this is where i'm curious were there any cases pre twenty fifteen determination holding that state regulation was preempted almost every case that looks at differing levels of federal and state food regulation find the state laws not preempt it i'll give you a few examples the first one from the supreme court was florida line and i would cut a grower's versus paul and that prevalent state regulations restrictions predating yes that no one whether the preemption action ever been brought against any of those no no no once know no one has tried to go there either way but if i could mention just another case that only came out in europe to you but you're down to one minute if you want to save any time for a guess it's a good idea thank you weston's theory their case theory has been rejected suggest something you can talk about sanctions all you want but i think from this panel you're not going to get sanctions we're interested in your view of the law absolutely prior to june twenty fifteen and let me take a step back because i want to clarify this this is purely a use claim there's no allegation that there was anything mislabeled on advanced peers product there's no allegation of any  false representation of fact that miss hawkins relied upon there's no allegation of fraud or or or advertisements that were misleading in any way this is purely a use claim their claim is that it is unlawful to use p prior to june twenty fifteen as reflected in the f d a is unlawful under the state law but prior to june twenty fifteen your honor generally recognized as safe which means it is lawful under federal law to sell them a state law that would conflict with that would be preempted so so you do you concede that there were state laws preexisting the twenty fifteen determination that attempted to restrict or prohibit p h o no no w the ones that have been cited in the complaint here are prohibitions against selling certain foods in schools and at retail establishment not a prohibition why would those be granted well it's because the a deals with what manufacturers can put in their food products i think there is a small spot for states to say where you can and cannot sell certain as a time place and manner exception to preemption well no it i would say that that's not a direct conflict where the where the where the federal government has an acted exactly exactly and so for example let's put it into the context of this case this hawkins allege that she goes into a dollar store to buy prepackaged microwavable sandwiches the california school regulation does not apply the retail the restaurant regulation does not apply doesn't apply for a variety of reasons first of all the product is prepackaged which means it's labeled those two regulations don't apply to prepackaged food because what the state of california is concerned with is food that isn't labeled in cordons with f d a regulations so those those regulations are doing other things if the state of california were to indorse a theory that made it unlawful to sell foods containing partially hydrogenated oils which is exactly what mr hawkins and mr weston are seeking to do that would be a direct conflict with federal law and it would frustrate the purpose of the f d a final determination that that that paragraph begins with the statement that the f d a is not taking a position on this if a state law were to directly conflict with the f d a subjectives it would be preemptive and then it worded sentence by the f d a and the only thing i can even imagine is that they are thinking of these time and place type regulations like you cannot sell unpackaged food in schools that contains trans fat that's the only way i can opposing counsel's argument that in the c a there were certain other additives chemicals that were there with an express congressional determination of preemption there was none there was no evidence from his perspective that there was an intent to preempt these contrary state laws what role should that play in our analysis i think that the intent from the ca is clearly to proclaim that his case theory is wrong the intent of the ca is to very clearly state in direct contrast to what they're alleging and still contending on this appeal that ph o's are not to be deemed unsafe and food containing ph o's are not to be deemed adulterated within the context of the f d a statutes and regulations and that's exactly the theory that they're continuing to advance well it's interesting because the ca s your honor if you look at the legislative history they say expressly the purpose of that rider is to put an end to these frivolous lawsuits that's in the legislative history that is the purpose for the ca they put that into writing to put an as safe it is therefore in adulterant erps are not adultery and additive and because it's an additive it's unsafe and food with it is adulterated that's the case theory tracking the language of the food dr cosmetic act they're trying to invoke that exact claim that congress rejected in the c a that's that's the way you could have been written as other portions of it were to say that during this period until june whatever it was this year that any state law that would purport to rule otherwise is hereby preempted something to that effect they could have done that they didn't do it how should we view that  make an express preemption well we're not advancing expressed preemption argument it's implied preemption it was implied in the implication from your perspective comes from the cia or from what the f d a did or the express authority to determine how you can use generally recognized as safe components and additives in food they have that authority and in twenty fifteen they determine that you can use them up until twenty eighteen after that you either need to stop using them or you need to apply for a special approval so to start with that and the f d a had very clear objectives they wanted to achieve by allowing that three year period so a claim that well those  were primarily commercial reasons it seems to me well they want to be right here out there shelves and so on and so on but the reality is that either of these shows are harmful or they're not harmful t really doesn't matter in terms of whether these are harmful or not and the congress didn't expressively say that you couldn't make a determination to the contrary well under the food drug and cosmetic act it's the f d a as the delegat of the secretary that is responsible for determining what say for our food it's their responsibility so state laws that would take that away from the f d a would be conflicted and preempted so the f d a here determined at the very least it's safe to continue to use partially hydrogenated oils until june twenty eighth they considered well it's the same stuff you know they say it's it's it's no longer regarded the safe but it's still the same it's the same it's the same product and so you're trying to say that it's safe up until this time is that as a scientific matter i don't think you can you know i know that i'm sorry i didn't mean to say that i'm not making that argument i'm saying that it's the f d a has responsibility to determine what we can put in our food and they determine that you can continue to do this until june twenty eighth scene and i want to clarify the f determination that partially hydrogenated oils no longer meet the definition of generally recognized as safe is not a determination that they're unsafe and they're very clear about that in their final determination they state that there was a comment saying that you can't take it off the list until or you can deem it not grass until you find the one safe and the f d a said no we do not have to find it unsafe to determine that it doesn't meet this standard you know generally reckon they're suing under rather general state laws that talk about unlawful unfair harmful and they're saying that up until the time  that the state law still applies i mean that's kind of the best i could do with that with what that the way that they're saying it and i think that has a certain appeal well the reason that argument is wrong is because prior to june twenty fifteen is were generally recognized as safe in the industry that means you can lawfully use them in food and if you can do that a state law claim that says the opposite would be a conflict and a preemption it would be preempted so that's why they're wrong thank you the only nonpartisan bit of legislative history here is from the congressional research service i'll just read in full cause it's only one sentence prohibits the f d a from deeming partially hydrogenated oil to be safe for any food containing oil to be adulterated prior to twenty eighteen and with that really i think those do is we don't have the burden of persuasion on or preemption they do and the burden is pretty high they need to show the ca had the unmistakable intent of congress to preempt and i think that's just not here going back to another point that was made by the fence was that the f d a said p h o was grass