need to do this thing required must meet both of them first they must risk being future rico violations rather than eradicate the effect  not even that i think both of those theories have been rejected  actually designed cigarettes with enough nicotine to create and sustain addictions did it two to maintain addictions and then the third one is it's you know would these three are not about the deception of the reason why the corrective statements that we are now talking about could be authorizing the rico is to is to keep the defendant in effect from speaking out of both sides of their mouth about the infringing qualities of their products now the second bullet in b which deals with the subject of i picture and the first and second or little i think you know the manipulation standard which i think are the ones they are talking about right now really say one opinion on requiring the defendants to reveal the previously hidden truth about their products will prevent an restraint right right but that isn't exactly from our opinion and that's the way that the preacher in the panel described him and you're right we struck down the other aspects of the room the other parts of the opinion because of people but this is this is this by having this look read ok but i just want to i want to get you to focus with me on this on the language i understand your point about the broader way in which in the discourse in opinion and elsewhere but it wasn't just that we said reveal the previous previously hidden truth in the the record before us in that case with the district courts zero six order had expressed we said that the defendants had to make corrective statements defendants challenging that before the court and in or opinion we specifically said that we recognize that the defendant would have to be under the district court's  order would have to would have to they would they would be required to make a statement regarding quote their manipulation of cigarette design and con composition so my only point about all this is that it was not actually in front of you and i don't think that you can fairly say that merely because one of the categories relates to my new nation that good necessarily implies that there has to be statement by the defendant and of even on the american media is this which was said multiple times in that case that statement that passed must think the best measure of that is that since two thousand and six and is now nine years every state and federal court that has been rescinded with these defendant to preclude them from having a new trial on this amish if federal and state courts in this country are willing to give us a new trial on these things that the government now says are so conclusive that we must broadcast them from the well right and i was going to go to that point next because it does imply first the big you know my last point that there are no side to the story whereas with truthfully say two people you know eight  you say in your brief and i'm looking at page forty one you say this is one of your objections to these bonded statements you say all cigarettes  government isn't hydel to compel its disclosure from the rooftops even though federal courts in state or elsewhere are prepared to view the west going to have open and not allow it to trial on the same map because government cannot simply say that a winning a single litigation in all in one courtroom although the defendant may be bound by the normal the legal consequences of that that it is i i think i hear what you're saying but if it's perplexing to me in light of how we do business it may be that they're all the district courts and courts of appeals who have their own separate litigations and or  determining what to do or not to do and whether to give one in respect to our judgments but i don't know what that has to do with anything that doesn't affect us if we have one or the case we're bound by it this is not a remedial stage and it would be a nightmare to think that the federal courts having gone through litigation now at a remedial stage have to stop to see whether other courts were taking a different approach and if so have to go back and relive again everything we've already done over all these years deference i'm talking about a legal proposition not i don't need to sound arrogant or we know it all but we have business to do and so i really don't care that there are other courts that or proceeding on a different course and if we end up with and again you just know that i'm not you know as understood as the where we are if you fail to meet czar of which is a very narrow safe harbor for the government to compel speech when there is really no controversy about whether this should be disclosed you might still left in some of these order if you know you see daniel chapter one and whatnot where you have a remedial step in with broader aims you might be able to compel it some time to under even if i make sure is that i think what the bank court was saying was it is not controversial at least in that sense it was not a warning to give a guideline for what is always one cover on it does seem to me that we that's true i agree with that reading you know you're right about that and i think that we can continue to then say that when d thing that's right asked you the question if it's not controversial in that sense in what sense is well that was my question i was saying are you if your reading of am i i will go back to the point that i made earlier which is to say when the same finding including you know the many relief from finding that you have  know right got to make sure i have it on the record it is on lawful for us to use law and light and all of these things are now we're in a very odd world in which by order of the federal court we are you know required to engage in speech that otherwise would be a lawful for us to engage in under the act yet and you know we live in a world in which these things are no longer sold or marketed as light natural or terra because that the defendant switch from white a little too far to golden other colors telling them they can find their life by color and then they have this very specific allegation about marlboro which put a note on the last pack of cigarettes by making it safe then we will be kept from saying the opposite in the future and in a world in which saying the opposite in the future or saying anything on this subject in the future is on lawful under federal law it seems to me that that's a little bit  melissa patterson for the united states i think it's helpful to start out by reviewing where we are in this litigation the defendants have been found liable for committing a scheme to defraud the american public a very particular crafting corrective statements that prevented restraint these particular defendants from committing their particular type of fraud and again when we talk about the preambles the district court explain what it was trying to do but that's what you're going to also said i'm trying to prevent defendants from arguing in future that there's not really a consensus about these bullet points no way you can switch i thought you were talking about the  you that they focus on the deception of the public right and that's different than focusing on the problem girl i think it's an that these all three of these opinions when it are we call violation to preventing a restraining and they very clearly say that the discouraging will is not part prevention restrains by avoiding or preventing consumer misconception i understand that argument and that argument was made by the dissent in the discordant decision but it was the dissent your honor i don't think that's the only reason the district court because i don't want to fence too in future argue that there's not really a consensus about these bullet points so let's just take take a step back and review the type of fraud perpetrated here for so long it's not as if some of the information some of these bullet points have never been heard by the public before the surgeon general public health groups who are trying to get truthful information out there and defend its perpetrated what they call their open question strategy they would take a truthful information like that that's in the bullet points and subvert it make people think it's not really finally get you need future further research they created both independence scientific research to create what they call marketable science to put out blue with the truthful bullet points that the government and other people were trying to convey to the public so the district court here we think did not abuse its discretion and recall if we're talking about rico this is an abuse of discretion standard and saying and thinking i just can't put these naked bullet points out there i need to provide what she called i don't want what you say i'm asking whether or not there's a violation of this court's w generally deter she was trying to follow this court's mandate at eleven forty page eleven forty of its opinion that said that if at the same time you communicate opposite truthful messages about these matters these matters were defendants and looking at earlier in that sentence says false and misleading assurances about for instance smoking smoking related diseases and addictiveness and of course all five other particular statements were before the district court that i think it was open as an exercise as sides of her discretion to think about what context do i need to give consumers in conveying these truthful products based messages in order to prevent and restrain these defendants  record says the credit to statement submitted by defendants i e without the preambles would be less effective that preventing and restraining it goes on to say later in the next carries over by ensuring consumers know that defendants have misled the public in the past on the issue of secondhand smoke but i think this rationale carries over into every statement because again every statement has the same preamble in addition to  fact that a scientific consensus on this subject exists defendants will be less likely to attempt to argue in the future that such a consensus does not exist and i think that rationale is this it's the same thread that runs through all of the same  preambles there all the same preamble the district courts trying to prevent and restrain this very type of fraud that created an open question and the district court i believe earlier to a four to a five said i need to where there'd been a specific single misrepresentation over a number of years the district court said if i were dealing with a specific single misrepresentation yeah maybe it's simpler sort of disclosure maybe just the bullet point information would be enough but here where i'm looking at the entirety of this record i'm looking at the type of fraud these defendants perpetrated and we need to do more people need to understand it is important and necessary context she said understand the truth of those bullet points that they are not and open question they are not an area in which further research is needed because that was the way that this broader worked before defend prior fraud suggested that hey one scientist says this maybe other scientists say this and some of those scientists were following dependent science who really knows the answer this is an open question as a health reassurance tactic and i'd like you to explain to me again how the preambles that i'm only focusing on the preambles here are consistent with that in that case there was  there was actual expert testimony which there isn't here actual expert testimony that this court discordant would create an economic incentive that would prevent future act to prevent and restrain future violations by general deterrence but went ahead and very specifically rejected that russia i think my answer is the same as the four is that this isn't a general deterrence bullet points are understood correctly as the real truth not simply as a bullet points that are sort of out there in the competing marketplace of bullet points as it were before the di prevent in restrain this particular type of fraud by these particular type of defendants and that i think if we're talking about how necessary this is to prevent and restrain under rico is reviewed for an abuse of discretion and i think the court was within her discretion to conclude i just can't throw these bullet points out there some of this information has been out there before i need to give consumers important necessary context about how to understand the truthful information about defendants products you want to is how just off the table for first amendment purposes that this is so inflammatory and self vilified that it just cannot be in our system and i think that things like f c c orders things like and all of the postings show that this is hardly unprecedented in a variety of contexts we ask or it's agencies people who have been fully into that he had to have done something wrong to disclose that fact as long as it's consistent with whatever the reprehensible an untrustworthy wrongdoers this is the scarlet letter and i work for the court the actual statements here which in context read like litigation notices it's an accurate reporting of what happened in this litigation a federal court has ruled that the defendant tobacco companies deliberately deceive the american public about the health effects of smoking and has ordered those companies to make a statement here is the truth followed by a bullet point it's just a court was not trying to sheehan humiliate punish any of those things the district court was trying to prevent  type of questions for you want to his you agree that filter should be light i don't i don't your honor i don't know if you look at the beginning of that statement it that regular tar i think that i think that's a fair reading of the statement here ok my other type of question  of the moon ammonia all everything else and this is in all the other bullshit statements about their conduct or in the past that this was not should there be in the past and false and you know i don't think there's any suggestion that somehow defendants have same product that have the same control features in them our crystal for the public health interveners the cryptic statements must be considered in light of the district court's findings of massive fraud which demonstrate that public health messages alone are not sufficient to restrain further fraud long after public health messages appeared i'm sorry every cigarette pack and in many other places the district court heard testimony from the defend his highest their wrongdoing whereas the argued throughout the trial undertaken fundamental or permanent institutional change the question is what language in corrective statements are appropriate under the various standards to restrain future fraud morris changing its position to some degree the district court however fact did find that philip morris and all of the defendants continue their fraud are likely to continue their fraud and that's the premise for all of the remedies all of the remedies are premised on the the finding that fraud is likely to continue which this court affirmed not only in the original appeal than the subsequent appeal when the defendants argued that the tobacco control act somehow obviated future friday not only with regard to other remedies this one specifically address the low tar fraud even though descriptors have been banned fifteen eighty one to fifty four which talk about filter cigarettes the filtering of cigarettes being a particularly important part of the low tar fraud and so in our view reading that part of the bullet about low tar or light i believe i out which we think is relevant the court also used the words that the statements may address defendants false assertions and again we would submit that that's exactly what these statements do in the preamble he addressed the false assertions and they are specifically designed to make sure that not just the public gets public health information that was not enough but that the public knows that these defendants deceive them which will attract notice in the warner case the court rejected that contrary to prior advertising preamble specifically because it said it was necessary to attract notice but given the public health information that's out there it's absolutely in our view uncontrovertible but that preamble is necessary in words sufficiently attract attention  are sufficiently detract from further fraud also with regard to there is some discussion of am i i think this is very important because the defendant seek to draw this firm distinction between conduct and the properties of cigarettes and we don't think that distinction is borne out by the quality of the product and am i itself it's not adam think it's a fair characterization to say that saying that the animals were slaughtered in canada is just about the product that says something about what happened to the product and saying that cigarettes were manipulated is similarly a statement about the product that is entirely appropriate in light of the court's findings thank you thank you let's see you were at the time but you can take constitutionally compelled me to say that i am a butcher or from transylvania on the point up on whether we're likely to continue doing gauging these things in the future i think it is fair to say that the court concluded that