may please the court the central act question we're asking to decide today is whether those who represent themselves as unbiased neutral experts present in a product radionics by mathematically search and make well you know use the guides to describe all of the competition out there and then announced on some purportedly objective basis dishonest products are the best and at the same time they fail to disclose that they have financial out of their way to i mean that their reviews are unbiased my mathematical formulas you plug in the numbers based on the data from the supplements and the number of  hans how far does this as your theory go i mean suppose we have it you know would television station that has a movie critic and the movie critic gives range rave review to one studio's pictures and doesn't disclose that the studio loans the television station or the network is is that now would you consider the movie review to be commercial not necessarily your honor but that situation is a little bit different than what we have here and i think to carry away that the movie critic is not the movie critic is is giving subjective don't know isn't just that that the experts as pies to this one of the companies that's rated but what they also don't know is that the formulas are tweaked in order rises or falls we believe on the application of the folger vs young test and alternatively on the riley base as well nutrition publishes one hundred and sixty dollars page comparative guide to nutritional supplements and that is not commercial speech it is protected by the st amendment the guide proposes no commercial transaction no products are offered for sale in the guide no statements are made about buying one cases reference in the briefs where what the guide but were alleged to have done was to basically sell the slots at a fixed price that you pay this amount and you'll get slot one dollar you're going to get rating number one or you'll get a rating that's you know you know lower than number three here's the price of buy that radon why isn't that if if that were the case wouldn't that be basically the selling of advertising and commercial speech it's a good question i haven't thought about i've been looking at this from the perspective of our guide our guide has a one hundred pages of the of the one hundred and sixty page guide that talk about the science of understanding nutrition and it only has twenty six pages that provide ratings of supplements and the plaintiff here are  is a single line on one page on page one hundred and thirty one where it's given a five star rating that can answer you have to look at the tower question is the selling of s that the selling of advertising in commercials being it very well might be i don't know they i'd have to think about that pledge that that's close to what you've done here so tell me why that's wrong it's it's wrong because the speech that's at issue is the entire guy what they're trying to do is to take a single line it one hundred and sixty dollars page guide and pull it out of the context it's going to jan and the case law is very clear and the riley case by the u s supreme court is very clear that even in a situation where you could argue that one line based on that theory would perhaps  under their theory be commercial speech it doesn't turn the entire guide into an actionable item the riley case the supreme court says that when commercial speech and noncommercial speech are inextricably intertwined as they are here then the commercial speech it's treated as noncommercial speech for purposes of lanham act billeted so the speech here is inextricably intertwined there is no way to cherry pick a single line out of one hundred and sixty page guide and say that that makes the entire guide commercial speech you have to look at the guide as a whole the guide of the whole here is  ratings guide that explains the author's opinions and understanding of the science that's at issue with nutritional supplements so i hope that answers your question why can't it be that there's an added you know book that otherwise is protected speech well there is the dex case your honor involved exactly that it involved a form of the yellow pages that was being offered and in that case it was clear that the deck directory had ads and form of yellow pages that were purchased and it also had a noncommercial speech in the form of information about public services and police departments and white pages and all kinds of other speech and applying the riley case from the u s supreme court the court in that case said you have to treat the whole guide as protected because the commercial speech and the noncommercial speech in that deck's directory were inextricably intertwined and could not separated and so the st amendment protected the entire document even when there were ads in the rankings are and historically intertwined i would and i think that the danger here of a finding to the contrary is that if you allow playing that's to plead around the consumer reports  exception with any allegation of financial interest or bias you're going to have this are an exception right because then you're going to open the door here for anybody to say well in this particular case the author when they were act had a financial interest or motive or some kind of bias and that will do away entirely with the consumer reports consumer review exception which is well established in the jurisprudence and so again i think it comes back to the riley case where there is a publication that is predominantly noncommercial speech even if it contains some small modicum of arguably commercial speech it still i in fact one of the things that i was on to point out of my argument here today was the st amendment meant a complaint says almost nothing about the guide if you look at the allegations the allegations really are trying to a lab some kind of bias on the part of my client mr mcwilliam and the reason there's almost no mention of the guide is because the guide is entirely noncommercial speech in terms of you know over one hundred pages of pet guide talk about the author's opinions an understanding of the science of nutrition and only twenty six pages of the guide even rank products and they rank one thousand six hundred different products in canada mexico and the united states and so i think that the absence of the guy being on the record here is telling it's telling in the sense that this case isn't really about the guide this case is about some beef that erik's has with usana and or mr mcwilliams on some kind of personal basis but the law has this court look at the guide itself and the guide here is clearly not for marshall speech based on the fact that it is as it says itself the guide is produce for educational and comparative purposes only it analyzes the science on nutrition and gives the author's opinions on one thousand six hundred products based on his understanding and opinions about the literature that's out there has a lengthy bibliography at  that sets forth all the sources that the author reviewed in order to reach his conclusions and so i think that that's pretty telling that it's not in the record the statement author and nutrition which corporation full i think it's a relevant and i think it's irrelevant for the reasons we set forth in our brief i think it has no statement whatsoever about a product it's not tied to any product it  doesn't meet any of the criteria set forth in the bolger case it's not an advertisement it's not referencing a specific product so it has really nothing to do with whether or not the guide as a whole is or is not noncommercial speech i thank you cancer your time has expired here rebuttal argument from mr god thank you summary judgment or trial or something but but it's not appropriate for now the reason why that many complain doesn't go in detail into the guide is because we're not attacking the guide  and that they could be opinion it's about the fact that mr mccloy you know was changing the formulas and doing all sorts of things on the scale to make sure that you saw it was always on so it's not just a matter of opinion just argued to be submitted i want to thank counsel both for your presentations specially under the ice unusual circumstances much appreciated thank you