at this time we'll hear men well versus the pepsi cola company permission i'd like to reserve three minutes for rebuttal to this case comes before the court on an appeal of a dismissal with prejudice under rule twelve b six our principle contention on appeal is that the facts alleged in the first amended complaint are sufficient to state a plausible claim for misleading advertising the district court disagreed with us for two reasons first it found that the complaint is based on a strained an artificial interpretation of the phrase diet pepsi that no reasonable consumer would adopt and second it found that the complaint does not plausibly allege that pepsi's representations were actually deceptive because plaintiff claims have outrun the science i'll dress each of those in turn first as to the interpretation of diet and diet pepsi plaintiffs allege the following first that the word diet commonly refers to weight loss as in i'm going on a diet second that pepsi has marketed diet pepsi as benefiting weight loss and body composition third that plaintiffs themselves believed that pepsi marketing of the product is diet meant that it would contribute to their healthy weight management and finally in the advertisements that you included in your you know diet soda has a long history and american life it was introduced in the mid sixty's and there was at the time it was introduced for diabetics and you know the advertise for a long time was very explicit about you know body composition and weight and good for diabetics now that advertising may have trailed off more recently but it's become so ingrained in our culture that we just we just know that the i mean if you just think about common sense and common experience the reason people drink diet sodas or at least one of the primary reasons people drink diet sodas is to avoid the stronger and the calories that come with the regular version and the health consequences that come with the regular version so we know this  there in the early two thousand two thousand and two thousand and nine the studies are somewhat equal but if you're if you look at the later studies that we cite from twenty thirteen twenty fourteen twenty fifteen twenty sixteen twenty seventeen the studies are getting much stronger and one i would point to is fowler twenty sixteen which we cited and notes fifteen to sixteen page thirty two of our brief but that study basically it's a review and what she does is reviews all of the work that's been done on on rodents and all of the work that's been done epidemiologically and shows that there's a great deal of overlap in the results and concludes that from that overlap you can see that there's something wrong here that that that it can't be explained just by reverse causality that that preponderance of the evidence that it's more likely than not that something is happening here and in fact i drank coffee at a speech you gave in dartmouth you noted that scientists speak in probabilities not uncertainties and that's one of the problems here is that the courts have this is through the the no hypothesis and so you are right that it's not sufficient for your abs harry simply say well i've shown correlation but not causation because science today deals mostly with inferences to be drawn from correlations but there correlate but the cutoff is whether use of p u of point five or less i don't know because i haven't looked at him yet whether any of your studies meet that standard i would say absolutely and there's there's six of our best studies i would point to if you're going to look at them so whether it's twenty thirty mm suez twenty fourteen and fowler twenty fifteen which is in our complaint paragraphs twenty eight twenty seven twenty eight and twenty nine notes five through six and then assad twenty sixteen fowler twenty sixteen and chia twenty sixteen which are in our opposition brief pages thirty one of thirty two notes thirteen to eighteen but what i would just conclude on the science is it's an issue that's ill served to be resolved at the pleading stage because you really have to get into and we're going to have an expert witness but you know we're lawyers pleading this and we have to plead a plain simple statement of our case but we're going to have an expert that's going to get into this and talk about this epidemiological evidence and the road in evidence and how strong it is and there's also there's a study that dana small did and you know where she showed that a mismatch between sweetness and calories can result in  here think your honor may please the court drew too mellow of gibson dunn for the pepsi cola company the district court's judgment should be affirmed for at least two separate independent reasons first as five separate district courts have held evaluate whether a reasonable consumer would view the challenge to label term as deceptive that that much is clear from this court's decision in f just getting back to your first point i don't really understand what you're saying here supposing pepsi had put out a product which instead of calling it diet pepsi a clause called it weight loss pepsi and yes that was an alternative to regular pepsi but they're also saying to the consumer in my example very explicitly the reason you might want to buy this kind of pepsi is supposed to regular pepsi or god forbid coca cola is that it helps with weight loss now i nutrient content claim approved for the for use on low calorie products it was authorized at the same time as reduced calorie low calorie sweetened with artificial sweeteners diet dietetic those all came in at the same time they were all approved to have no meaning and they only meaningless you know they were all they were all approved for products that contained look low calories and if you now look at dictionary definitions the most a thorough all the authoritative dic dictionary definitions as part of the american lexicon and the english language webster's third oxford cambridge dictionary new american oxford dictionary all of the dictionary definitions specifically refer to diet as a reduced calorie beverage that's what diet pepsi means planus can see this at page fifteen of their brief they your honor i believe the phrase die it as it is understood and has been understood in the fifty plus years that this product has been in our households as it is defined by a regulations which is when diet proceed another reference it delete it means it deletes the calories normally present in the referent drink that's one zero five sixty six and common dictionary definitions all have stayed the same diet means no low calorie if what your honor is asking is if nutrition science is evolving such that the statement that something is get now into very tight fitting jeans and then it says in the second portion of the ad we can help diet pepsi you've said that's not a clear statement that  using diet pepsi you will help reduce weight your honor it's a it's a clear statement as judge engle meyer and the five other courts have found that relative to full calorie pepsi you're not going to get the calories that you would get is not a clear unequivocal statement that diet pepsi will help you lose weight your honor not in the way you're putting it context is crucial and when you look at that ad and particularly counsels acknowledge and i'm glad he did that these ads appeared at the time diet pepsi was first entering the market what does that you've been that's that's consistent with your argument that this has generic meaning going one you advertise this as a weight reduction benefit relatively it had to find the market compared to full calorie pepsi relative to full calorie patsey it has fewer calories you there's no dispute in judging a minor pointed this out that consuming full calorie pepsi relative to diet pepsi is going to lead to more weight gain there's no allegation that diet pepsi is worse than regular patsey that's what these ads are trying to communicate there's no allegation that these ads are false or deceptive there's no allegation that these ads are not making that comparison between pepsi and diet pepsi and al that issue one is in the lanham act context and only verses cornerstone therapeutics with this court said is if a product makes a claim based on non fraudulent science it cannot be attacked as a false and misleading advertising claim where the science is in controversy and that  misleading under three forty nine and three fifty the other context in which they york may not all make leading new york would say i agree three forty nine three fifty then shouldn't we i don't think you need to certify your honor where again the definition of diet as a nutrient content  intended to be used on low calorie were dictionary definitions make clear it's low calorie where f d a regulations one hundred five point six make clear that diet precedes a reference it's low calorie where it where we've had these products in our homes for fifty years and everybody understands it's low calorie there is no promise implied or otherwise in use of the term di it means the you know you keep coming back to the regulations so the the f d a the regulations you've been referring to are placed under a section titled quote labels statements relating to usefulness in reducing or maintaining body weight and the section goes on to the regulation goes on to say that applies to any food quote that purports to be or is represented for special dietary use because of usefulness in these labels as generically part of a suggestion of to the public of what is useful in reducing weight of iran or that the regular says the weight and caloric intake and with respect to body weight there was a whole separate per vision of label terms that applied to food items that had special dietary uses for example formulated meal replacements over time is f d a has f d a has recognized that that those the general public was becoming more aware of the relationship between cowries and between calories and up and u p and and body weight that it then lifted all of the special rules for the products that had spec that were intended for special dietary restrictions i think what i what i would say about the claim here is that the term diet is reasonably unambiguously understood to mean low calorie the debate here is as a matter of nutrition science does signaling low calorie or reduced calorie or no calories or no sugar does that do consumers are they now confused by what a calorie would do but there's no dispute that consumers understand when they drink diet pepsi they're getting a diet pepsi drink and if if this claim is able to go through on the theory that artificial sweeteners are way inducing which by the way i don't think the science shows at all as as the judge below held but all the foods labeled diet dietetic low calorie reduced calorie they can all be challenged on the very same theory that a consumer of course with drew would consume this product that says low calorie thinking that it would be better for them for we maintenance and of course these lead to you know weight gain based on the use of artificial sweeteners all of those approved an authorized label statements would be right i think if i understand the question at the dawn of the era of diet pepsi when congress and the f d a authorize the use of the label it was understood as zero calorie that definition if anything has only solidified over fifty years it's now in every dictionary that the supreme court has considered  what has what the plaintiffs are alleging is that the nutrition science about artificial sweeteners is changing and that the impact of consuming foods with artificial sweeteners is changing we totally disagree with that view of the science and don't think as off as that all the courts have concluded that there's a plausible basis to infer causation on the basis of those studies but the term diet which is the threshold issue they have to overcome in this case that diet means weight loss that is not a reasonable interpretation of the term and if i could say just a few words i think were i i  think it's time to do so fair enough your article ok thank you relief in terms of the label diet as well as compensatory damages compensatory damages how would you measure that the price premium that people paid for a product that's represented to be diet what if you like the same price as the similarly situated correct as that mean people who consume diet soda on the theory then that it was going to help them lose weight and they added weight it means everybody it's everybody who bought diet so theory is that that representation creates a price premium in the market for people who for whom diet is important and you and you say it's not a half of the general model yet and he says mom behalf of the general public correct and that so what's the should we let from space that could be one possible result your honor if you know the facts fine or doesn't believe that there was evidence that it was false before this time we think there is evidence that it was false before this time and but again i guess what i want to go back to those were her at the pleading stage and i think what this argument reflects is that there are plausible interpretations both ways and when you go to anderson is what it says is if plaintiffs have advanced a plausible interpretation then that is sufficient to state a claim even if the judge thinks that another interpretation is more plausible what if the label of a soda said reduced calorie would that be misleading i'd i thought it also had aspartame with would that be misleading i think the answer to that is no diet has this is the answer is no so says zero calories and  zero calories that would not be misleading even if it contains some chemical that made you grow obese is how correct our position is that diet has a quality to it that's above and beyond low calorie and there's a reason they don't call it low calorie pepsi they call it diet pepsi i don't know what they're doing the reason you're saying there's a reason and i would submit the reason is because consumers low calorie and no calorie why would people be interested in something with low calorie but albert why do you suppose people would be interested in saying something is low calorie before cause they want fewer calories wrecked for  suggest an affirmative value beyond no calorie it's a suggestion that if you take this drink you will reduce your way i think that's true and there's also you know because it's no calories it's it's not just that you reduce your weight if you substituted for regular but that if you drink it it's not going to contribute to a just like just let well yes yes your honor they should they use  a regulations and saying oh this is a this is a nutria contact claim that means low calorie consumers go in saying diet means i'm going on a diet and i'm going to lose weight and by the way i'm not going to drink the sugary sodas that we've all been hearing such terrible things about and so i would say it's very misleading to call something diet when it's causing weight gain even if it's not as much weight gain as a regular sort if it causes any weight gain it's misleading and if it causes the sort of chronic illnesses it's misleading  you're saying that if it causes less weight gain then it is and then it is still not diet yes the people on a diet they eat something otherwise they would drop dead right that's true so by definition people on a diet eat fewer calories that's why they're on a diet that's true but they're right there's a relative and an absolute notion to this it's true that relative to regular people expect relative to regular soda that diet soda is going to be better for their health and for their weight but even setting aside regular soda because they understand it has no calories and no sugar they also believe in an absolute sense that it's not going to give them anyway whether it's substituting to have a multi in truck that cake and instead they going to eat cupcakes correct well that's true but that doesn't mean the cupcakes are will cause you to lose weight indeed you have to eat something and everything you eat has calories and i think that illustrates the difference in what they're saying is diet pepsi has no calories if you call that diet cupcake it's not going to give you any calories but in fact it it makes you gain weight i mean look the point here is that you would expect if you substitute twenty three diet sodas for twenty three regular sodas all else being equal to drop a pound of weight but in fact are allegation here is if you do not drop a pound of weight and you only drop half a pound then there would be misleading because people because it has no calories expect it like water not to contribute to weight gain at all water is not food now but it lacks calories just like diet pepsi but it doesn't have as aspartame which is affecting metabolic response and causing and causing these problems