cereals and snacks are healthy and whether their health and wellness statements are false and misleading are questions that cannot be resolved at a motion to dismiss stage and it's their decision in twenty one thousand dollars however the court changed its mind and how th plaintiff's theory was untenable application of the reasonable consumer standard we contend on appeal that the court error in dismissing some individual claims in the st two orders and erred in dismissing the entire case under the reasonable consumer standard in the rd one and there's lots of issues raised in the appeal and given our limited time i'm happy to address any particular issues that are likely to address st otherwise i'll begin with the reasonable consumer standard and then move on to preemption and argue in the order of importance to us and we argue that that impression is false in the sleep if it's false and misleading because you have to consider the whole the whole diet then i think what you are your argument or your the question that you're their argument and your question presumes almost proves too much if if no food can be called healthy or unhealthy because you have to look at a whole diet and a whole diet then general mills shouldn't be labeling its foods as healthy but what i would say is that general mills is misrepresenting our case theory in our end when it says that we contend the reason that consumers can't figure out how to integrate these products into a healthy and so healthy diet now a healthy diet is different than a healthy whether the representations are likely to mislead a significant portion of the population what i think you have to do is decide on the best available scientific evidence is a product that contains you know twenty to forty percent of its calories routed sugar fairly characterized as a healthy product or is that characterization likely to mislead somebody and you know we have the benefice is sort of the unusual situation in that we have the benefit of hindsight in these cases because two of the cases that were filed on the same day against kellogg and and post that's the have the case in the chroma case those cases have proceeded and had quite a lot of success both cases classes were certified in both cases they've obviously both survived the pleading stage with both judges aurukun judges kind of finding that we had alleged efficient science insufficient misleading representations  the spreading claims and kill i after that entered into a very substantial settlement which agreed to pay monetary compensation and also removed or change a lot of the claims i would argue that these results would be astounding if they were based on a case theory that was impossible as a matter of law you know in tone leave the the supreme court said that the possibility standard exists to avoid frivolous litigation or merit litigation that's likely to be frivolous and i heart association's scientific statement which itself is based on the scientific record a lot of which is in the complaint as you know there are a lot of percent of your work and across the board that's it's a five percent daily recommendation and a has a ten percent recommendation and i agree the best not so unspecific but that doesn't mean that we can't apply the principles from that in the science from not just the super foods if you if i mean there's one thing that's somewhat self evident if you want to stay below five percent of calories from shock from out of sugar or ten percent when you eat foods if you and all day you eat foods that are less than five or ten percent from out of sugar you're going to stay below that what i would submit that well you know how do you translate light of the scientific evidence about what foods with high sugar it's do to us is it fair for general mills to be telling consumers that these are healthy serious i mean you're asked me questions suggesting how can we ever call this an unhealthy cereal because because of the diet issue but i would say that the the opposite is true if we can't call it either healthy or an either unhealthy or healthy because we have to look at a full diet and it's misleading for general mills to be calling it he but these types of cases have a long history of proceeding including this this court's decision reverses johnson and johnson where it held that health health and wellness claims made on a butter possible and again there's four cases including two exactly on point below that have found these allegations not just plus mornings and past the police but we've got a judgment judgment on the science sponsors could be misled by the by the assertion that a food is healthy and when you have to start talking about mitigating the effect of the foods by eating other things that are healthier that's a good indication that you're for is not healthy  illness is the opposite of health so i think that there's a very clear cut very clear cut theory here that's supported in the science even though policymakers make daily recommend make recommendations for daily note that in the dietary guidelines they say all food choices matter so each individual food choice matters when putting together a healthy diet and if you if you're looking at a cereal that's twenty or thirty or forty percent of its calories from sugar and it's telling you that it's a healthy cereal for your family well that's a food choice that matters and that's some misrepresent i there is a case  look at the entire afternoon record absolutely supports our side of of this controversy and that's what judge ordered around recently but but if you look at it i think there are certainly statements that support ours and the statements that they're citing i think are a is so infallible that it's impossible to believe that consumers could be misled by statements that sugary foods are healthy and while general mills may be able to use the f d a as pronouncements in support of his defense and indeed granted a dimmer and the california supreme court overturned that finding that it was a viable case and i submit if you read the facts of that case they're very similar squarely on point here the only difference being it was television advertising rather than the evil advertising common sense a reasonable consumer knows that sometime cereal is sweetened with sugar here consumers also do that because right on the front of every general cereal issue in this case the company told consumers exactly how much sugar a person having was in the product the labels also told consumers about the products other nutrients ingredients that they contain things like whole grains fiber bidens and minerals and from us a reasonable consumer had all the information they needed to decide how to incorporate these cereals into a healthy diet and there is agreement cereal is part of a healthy diet the chief piece of scientific literature relied on the plainest own complaint concludes that when consumers eat cereal with added sugar their overall dietary reasons and we asked that this court affirm now because the regional consumer issue is dispositive of the appeal in its entirety i want to focus my remarks this morning on that aspect of the law and address to keep points  i want to explain why the plainest theory that they were deceived about the products healthfulness is not tenable and the result consumer standard and nd i will speak to very briefly why their reliance on the williams decision is misplaced based on the admitted facts in this record so let me start by addressing their theory of deception so the plants basic theory is that reasonable consumers were deceived about general mills cereals healthfulness i think this is largely addressed by two principles that can be distilled from this court's reasonable consumer cases the st is reasonable consumers are presumed to act reasonably under the circumstances that comes right out of lady and as cited in this court sera and have the decisions and and that principle of law bears on your questions and sinker to be clear your characterization of the complaint is correct the plaintiff's theory of deception with respect to our products is not that our products per se are unhealthy is that we can consume as part of a total diet they result of allegedly and some negative health outcomes but that theory of deception depends on the notion that a reasonable consumer is unable to balance the incorporation of these cereals into their diet and that simply is not plausible when measured against this court's reason the consumer precedence basara case in particular stands for the proposition that reasonable consumers are presumed to know the basics of diet things like total caloric intake has to be monitored for weight loss and the same thing is true here reasonable consumers know that an overall healthy diet is the function of a balance of a variety of foods but the nd basic principle that can be distilled from the courts reason consumer cases is that reasonable consumers are presumed to have a good understanding of commonplace goods so that's been determined with respect to things like lip balm diet soda ice lattes and here the product under consideration is cereal now cereal is something that's been around d for decades and is an unchallengeable fact even planted some complaint points the cereals introduced as far back of the night as the one thousand nine hundred and forty s and so a reasonable consumer goes into the grocery store with some preexisting knowledge of what cereal is and here in light of the nature of the allegations that understanding gets us a step further because not only do consumers have an understanding of the product but there's a basic understanding that cereal is the thing for breakfast and the necessary implication of that is it just one food to be balanced with the remainder of your diet throughout the day so both of those principles of reason consumer law cast doubt on the render implausible the plaintiffs theory of the section now the plaintiffs response to this is well that's an issue of fact whether or not these labels are deceptive is an issue of fact but if you look at some of the representations on the labels in light of these d principles no reasonable consumer takes from a reference to whol grains or a reference to wholesome goodness that they can ignore the rest of what they've been told about the cereals nutrients including sugar or that they're then free to disregard how to incorporate it in the rest of their diet so the next response here is well that's a fact issue whether or not plaintiffs have been deceived in this fashion is a fact issue but it is not when you consider the relevant legal standard and then use that standard as a yardstick to evaluate the plaint complaint so the standard here is whether or not it's probable that a significant portion of the consuming public acting reasonably under the circumstances would be to see then i know that's a mouthful but probable customers that these are healthy it is your honor we do not dispute that the plans to possibly allege that and we don't need to because our position is the cereals are healthy but but the fact that they say that the effect of these that is correct you are but of course the effect of those messages has to be measured in contacts with everything else we see on the label as well as considered in light of the relevant legal standard and then placed in the alleged that this is a widespread widespread pattern in practice by general mills of labeling and that's the deception will result in negative health outcomes but there is not a single instance pointed to in the complaint of anyone having experienced those negative health outcomes as a result of eating germinal cereal and i know this is not a personal injury case but to be clear their theory of deception is tied to that outcome and so it bears on the possibility of the allegations that that think and his argument is well even if you can't figure that out it's not to say you're healthy if you can't actually show that there's no letter to say this is how the and this is not how can you claim one or the other what do you what do you even close to that number but but beyond that the issue of whether or not the product is healthy or unhealthy has to be evaluated by one what we communicate on the products labels as to the products overall nutritional content and to will result consumer be able to take account of that information and incorporate it into their diet and and the answer to both those questions is a reasonable consumer can do so i want to return to the idea that the plaintiffs theory of deception here is tied to d the total diet in terms of how to sugar consumption not in an individual food as i mentioned earlier that the complain plainly alleges that what's harmful here is the potential for added sugar consumption as a function for total diet but again that result only obtains if you assume contrary to law that a reasonable consumer would consume these d without taking regard of their overall dietary intake and that is just not an inference that the plants are warranted d under the case law finally let's look at what the complaint actually alleges with respect to cereal so there is a lot of science in the complaint the only science that speaks to the issue of cereal is a two thousand and nine article from the ha and we're not cherry picking this article this is i think that fairly characterized as one of the says that when consumers eat cereal with added sugar that's beneficial because of all the positive nutrients that go along with a bowl of cereal the vitamins the fiber the minerals all those things are nutrients that are conveyed when you eat a bowl of cereal and on that exact point that's why the a j and f d a are in agreement and the f d a is conclusions about why nutrient dense whole grain cereals without a sugar ltd it's implied by  the st two words of that statement which is these are nutrient dense foods that provide beneficial nutrients and so when you consider that in light of the other failings on their theory of deception that also renders their complain now finally let me briefly address in dealing with the complaint the rest of the science none of the remaining science site in the complaint said anything about health effects of consuming syria without sugar and this is a point we've pressed below and that we pressed on appeal in the plainest have no answer and this is not i think any jurist would characterize this as an abridged complaint it's one hundred and twenty three dollars pages three hundred and sixty nine dollars paragraphs  scoured the scientific record and yet there is not a single piece of evidence that they allege bears on cereal so your honor let me but before i turn to the whims decision i wan briefly address one point that the plaintiff that mr fitzgerald made with respect to the other decisions that been rendered so let me say this and the decisions by judge cohen judge york the application of the reasonable consumer standard to the plausibility of a complaint is a question of law and so it's one that this cork and address and the fact that district courts have decided the issue just differently is no reason not to address that or not to affirm i point the court for example to the painter versus blue diamond decision which is one of the cases cited in our briefs if you look at the briefing in that case that the plaintiff made the exact same argument that well there is this disagreement among the district courts as to whether or not our theory is possible but that's no reason not to apply the proper legal d rule and to affirm and i'll pause and say one more thing which is that of course judges y and judge also in the car decision ruled in a fashion consistent with our position and judges white and judges at the highest level of generality the plaintiffs are relying on williams to argue that because this is rule twelve and because we say there are disputed facts you must reverse but that's plainly wrong if you look at as any kind of generalized barrier to affirm its here nd they they cite williams although i think fleetingly in light of some of the concessions in their reply brief for the proposition that the reason the consumer would be charged with understanding or having taken account of everything on our serials labels my st response there is that's really an issue i think that has been played away by the admitted facts and if you look at  and eighty seven the plaintiffs the lads that they reviewed the labels in full and of course reviewing the labels and told me and seeing all the information that generals provided on nutritional content and so i think that really dispose of the plaintiff's remaining reliance on oil and your honour's if there are no further questions i'll conclude by saying that's the reasonable consumer standard serves as an important ability case based on the presence of trans fat and noted that reid had contend that he's a leg consumer with no background in nutrition food science in any event plaintiffs pleaded paragraphs to nine yen three nineteen of the rd amended complaint for example that at the time of purchase they were unaware of the extent to which consuming high amounts of added sugar in any form in bursley affects blood cholesterol levels in increases risk of c h d stroke and other mor district court was obligated to accept as true that they weren't aware of the ramifications of eating sugar so even if they were required to look at the nutrition lesson the nutrition facts to see the sugar and follow that one and corrected the want to do is point the court toward walters vs vitamin shoppe industries and general mills argument as cleanest plaintiffs and other consumers should have seen that the struggle in the context of all the other nutrients made their decision about whether general not a lot of things that do that there's not a lot of junk food that represents itself to be healthy candy bars are not out there calling themselves healthy for your family or heart healthy and you know these the arguments about the daily versus product we won that argument on s