good morning your honors greg weston for the plaintiff peloton hawkins i'd like to start this case by saying i think this may be the most grave an important peel this court hears this year or perhaps even longer trans fat is responsible for at one point more than one hundred thousand excess deaths the most important case this court will hear what not well i think let me give my reason for this transfer that during the peak of its use in the american food supply cause excess mortality a one hundred thousand americans per year the number is lower now but americans continue to die every single year as a result of trans fat consumption which we believe as not legal to put in the food supply under california alone pardon i think prayer is not going to get too far here not some law well if i could offer a practical reason there are two district court cases that are state pending this appeal and there are also t pending appeals that are several months behind this one that would be resolved by a published opinion in this case but to get to the law we have two different theories here one was very squarely addressed in reid versus johnson and johnson and says nutrient content claims involving transfer out are simply not allowed what reid says it is by default nutrient content claims such is the one issue here as well as the one issue it read are not allowed unless specifically authorized by the f d a and what reid said explicitly is there is no trans fat nutrient content claim the f d a considered creating one and then simply does decided not to based on lack of information and read poses a question if in response to the manufacturer using trans fat back in that case if transfer that claims were authorized then why did they consider a new regulation doing so and reduce controlling and it's correct there was another decision that this district court here explicitly followed as well as the district court in in read incorrectly follett it was reversed on and with that decision was a scrape vs dryers and i looked at the party briefs and none of the three party briefs nor the very short unpublished opinion ever discussed twenty one c f r want to one point six two that regulation explicitly concerns and tender nutrient content claims involving fat fatty acid and cholesterol your contention that the  under separate regulations so i have to have a statement differs from the statement on the back that it differs in the sense that the statement in the back is subject to rounding rules in the statement in the how does it differ from the statement between the two statements is there a difference between the two statements yes there is a difference in the statement that the difference is it says trance fact dot dot dot zero grams and on the front it says very prominently zero grams trans fat preserving difference the difference is when you highlight the lack of a nutrient that people who are concerned about their hearts look for on the front of the label that makes a general representation that this product is something if you're concerned about your heart you should buy the safely that's why the f are you saying that the front zero grams of trans fat is absolute it's equivalent to no trans fat but the fact when you say zero grams of trans fat that stands for less than point five grams of and it's about the context or context the context is on the nutrition label they're mandatory claims put in the context next to the ingredient list and there's all along as well as a listing of the other nutrients a nutrient content claim on the front is saying this product is special because it has this feature and for that reason those hand be deceptive even if they're the same as the one in the back basically what you're saying is under this regulatory scheme which is anything but easy to really delve into that there is a dichotomy and a distinction that's drawn between what can be on the nutrition label on the one hand and walk in the nutrient content representation on another part of the label of the dock of the of the product that is exactly correct our dealings from one to one point sixty two explain to me whether that is really the basis for why you think that the answer to judge brown that's question is yes there are different standards and it could be one way on the nutrition label and if you weigh on the nutrient label i think that's what you're really talking about yes well the simplest analysis on this is simply that all transfer nutrient content claims even if they're true are simply not allowed to be made on the front label there's not authorized and only authorized ones are allowed the reason that i got why is because one or one point sixty two doesn't talk about at all yes it does not mention transplants however it does say only the following authorized claims are allowed to be made about fats the cost wrong about trans fats ago also is the preemption to deal with in that respect but i think the thing that's paradoxical and i go back to read it seems to me if i read we correctly that's exactly what the court didn't read you drew a distinction and they caught in the between the nutrition label and the what it had and all of the nutrition content on the it does seem to allow for certain claims without reference to one a one point six two part of one one one point one three is that the header is general rules and we agree that the plane does comply with one general rule which is that there are they correspond to one another however what a one point one three does say you also need to follow the particular rules for each group of nutrients and the particular rules for fat and cholesterol are one point six two and if you look at one point six two of violet's it so we've never disputed that if a trance that claim were authorized were allowed then that would possibly be ok because it complies with that particular section of want to one point one three but that's simply not enough we don't have to say they violate every part of it we only need to show they violate one one point six to look you know you think there's a distinction between say zero transfer that was read  n it could tell you the best statement of the reason why there is no distinction once again one of one point six two when it is regulating saturated fat claims in total fat claims and cholesterol claims groups those groups together they say in the list of regulated claims they have zero they have no they have negligible amount and they're all regulated together under the exact same rule with regard to travel with pardon with regard to total fat and with regard to saturated fat if there ever would draw a distinction between the nutrition labels on the one hand and the nutrient content on the other hand why well to do use probably the best example if you're making a claim you have no cholesterol but the product has this full of trans fat and saturated about the f d a is concerned that that front label claim we don't have any cholesterol is misleading because it says if you're worried about cholesterol by this but in fact if you're worried about cholesterol you should avoid the product because of it's high transport and saturated fat dietary cholesterol is only a small bit of importance compared to what type of fat you're consuming and actually governing your blood cholesterol and for that reason you have a huge claim here as well yes the labelin claim and you use claim that through different issues here on the use clean you say that there should not be any koreans fats in any of these foods whatsoever and the california law i take it right that as president to go forward with that and the court said that you know you in respect to the use screeners just based upon what lack of standards only lack of standards and you say that they're standing now because of what they've it's and again know it with this they're both claims the claims are economic and the reason that there's the district court said there's no standing is because the plaintiff purchased the product before it had the zero grams claim on it and therefore it said the claim that she relied on zero grams during the period it did have that was not credible and i disagree with that i think under california's very forgiving standard if you purchase a product even in partial reliance even one time on a false label claim you have standing to that so that it rang possible i guess in terms of our resolv first because it's fully briefed and because there are multiple cases state hoping that this court will resolve it and then the second reason is the court could affirm the dismissal based on preemption of our use claim and that's the reason that both transparent regulation could have preemptive effect under state law yet time is up i just want to be clear that if we say no on the labeling claim we still have the reach the use claim and the issue of preemption even though was not addressed by the district court is something we could address and should address it's the ills of the matter of law yes i agree morning honors jacob harper davis my training for the corps company before i launch into my argument i want to address the distinction between the no trans fat and the zero trans fat because i actually think it's a fairly simple even briefer was tried it out the court decided that on the summary disposition basis with limited information and i looked at those papers the arguments that we have here would not have always been correia just went right past the court like pierce the lawyers let me just ask you are just curious as to how you can differentiate between something that says zero to as fat and z o g trans fat because it seems that that's what lead is all about i agree your honor i look to the regulations for that the regulations zero grams trans fat is falls into twenty one c f r one on one point one three which judge new in head reference that's an amount or percentage of a nutrient that an amount or percentage a pretty precise number whereas zero trans fat is falls under you know fat free or no fat that draw distinctions between z zero and just nutritional content correct your honor but that's where korea had addressed this that there really isn't even the dress you want to one point sixty two lead does and it seems to me that you say that this case should really be distinguished from lead council my colleague made the same distinction when he was discussing read and we had referenced that and in our papers being the key distinction between zero grams and zero is that one is a qualitative amount or percentage of trance fat and the other one is not think that a consumer looking at that label is going to say this  correct zero grams trans fat is a i can't say this enough times but the f d a has stated that the term zero grams trans fat must be stated up to but between serving which is in the nutritional facts is not false which is what the cases say and that but it's it becomes false by placing it on the front of the lakes we were meant i think on the traditional label and he said zero grams right it did not it but the nutritional label said zero grams but the new statement that was at issue said no trans fat and that was a does does the key distinction between  grams on the front and zero grams on the back correct your honor and in read i i need to make this point but one on one point six to the gills with a level of fat they say anything about trans fats it does not so there's no preemption i don't agree with that the prevention the no one point sixty says no facts i get that this says nothing about trans fats in fact with the label on the front not now know i read it he's relying on one on one point six to one zero one point six four two birds but one one point six two does not apply to this case because one on one point six two concerns a specific list of prohibitions that was zero fat no fat negligible source of facts that are always saying is that there's no preemption babies of one hundred one point six do you agree with that i do not agree with the preemption preemption is because the zero grams trans fat on the nutrition facts label that is what it is at issue here there is no statement of that the only statement here honor you do have to read and where do you get preemption here when i read all these regulations that came out this expressed visions and says that the expansion to two thousand and eighteen is that intended to preempt state law well if you look at that the language that you're on  citing it actually says it's not likely quote not likely to conflict with state law however if you look at the state laws including the state laws they were cited in the complaint the state laws uniformly say that the listing of the various percentages that can be claimed in labeling i'm not sure i understand your question because because one no one point one three i it seems to me does allow some claims of nutritional content in labeling that's not based on the section that plane that for a license which is one no one point six two i know that this is going to get very confusing but to me it does allow for some of that so long as it's not and misleading so is your argument that i can go under one a one point one three subsection and this statement here in the front going back to try hearts point is literally not false and misleading well it would be a contradiction to have and confusing actually the f d a regulations and the nose i don't recall the citation but in the final at the final determination it in fact it said that confusing to have one set of definitions for zero grams trans fat or other identifiers in the new nutritional label and have a separate set of  serving on in other places on the label because then you have the same problem that judge reinhard mentioned at the very beginning of argument which is how do you have the identical statement saying two different things we have the f d a defining what that statement then you become it becomes a contradiction and i read those regulatory schemes seeing as allowing exactly that i know it sounds improbable because you need jerk reaction is that if this is what the end of the christian label that's lights out that covers everything but i don't think those regulations really i believe her question to be ok i agree that there's nothing about trans fat permitted in and point six two but what about point one three and that was an exact issue that came up in read and this is what reid said about it on this would mean section one hundred one point six two is redundant if section one one point one three authorizes no fat and no saturated for fat claims for products with small amounts of them why would the f d a go to the trouble of promulgating a separate regulation and that regulation again says only the following claims about the level of fat are permitted and zero grams transparent just as much as no trans fat is a claim about the level of the statement about crime fraud was not only inaccurate but it was surrounded by a series of statements that lead you to a feeling that it was good for your health this is an isolated statement it doesn't say look we've only got less than a gram therefore this is good for you it won't do you any harm it doesn't say anything except and i factual statement which is which as a matter of fact cannot be false unless we have to two facts two truths in life once word statement is false and once words true just in isolation dis is not in any way like read where there's a whole series of statements where this is the which put this in context no context it's a mere factual statement which is  far as i'm concerned it's either false or it's not false and if it's false false both places well i agree that reed was much more egregious lee misleading than the claim here but the issue in read and the reason we're talking about possibly true possibly not is the question is when you're doing rounding when you are not required to in the front label claim nutrient content claim could that rounding where it's required on the nutrition label be misleading on the front end again the f d a believes that and regarding the distinction between the different claims between the phrase no fat and zero grams fat this is again directly from one to one point six two subsection be one these are the facts claims in the regular together that free for a a fat no fat zero fat without fat negligible source of that in significant source of fat those once in particular no fat in zero fat find on the back and it's the identical term if this lady was interested in the the amount of trans whatever they were fat and this label hadn't been there the statement of no grams had been there she could have turned it around and she would have found the identical statement and she would have been just as misled and let's hope that it's true  person i'm concerned this is i don't think and kneejerk reaction i think this is a reaction to my belief that there are facts and that the same statement can't be false and true unless it's something so rounding up as it once and read which gives tells you what it means what effect it has this is just a simple statement of fact what you find in two places on the bottle