your iraqi issue in this case is whether florida statute five hundred and sixty two point four five five which is that on the books of the florida statutes for more than one hundred and fifty two years and which prohibits liquor containing an ingredient known as grains of paradise from being sold within the state of florida it is preempted by federal regulations and acted under the federal food drug and cosmetic act the f t c a and the food additives amendment a which placed grains a proud paradise on the list as being safe to consume you the district court apply the principle of conflict preemption which can occur when a state law is an obstacle to the objective of a federal law congress to do so and that purpose is determined from the language of the federal statute and the statutory framework surrounding it by sixty two dollars is not an obstacle to the objective of the kyra can we discuss the actual merits of the lawsuit because the district court also ruled on damages that your client did not meet actual damages under saddam can you address that issue for me yeah st of all specifically what the district court ruled was that we didn't we weren't able to sufficiently plead a cause of baksheesh because of the element that you must have actual damages and that illegal to be sold in this state that the product is either therefore worthless or has a diminished value and that could satisfy a pleading the element of actual damages in a cause of action for doctor however in this case the district judge ruled that it was not sufficient because it's not illegal to sell this product in the state because reverting back to his original ruling that there but i guess my my other question is under saddam the florida statute oh there's a safe harbor provision that says that if you if something is allowed under federal law th would go as question because the statute the florida statute says that it doesn't apply to any act or practice required or specifically permitted by federal or state law which seems to be different than the question of whether  they don't specifically permit the sale of these products what they do they are and are a amicus brief will be amicus will address this more more in depth but what they do close them on a list which says that they're safe to consume but they don't address whether it's permissible to say no or whether it's perhaps even from sale all they say is that they're safe to consume and so there is no so what the f d a regulations are there on a list that that placed on the f d a which says that this is a product that's safe to consume it has nothing to do as to whether it's permitted to be sold or prohibited from being sold and that's really the  just those really opinions of a few legislators which in fact were or were in conflict with the opinions of other legislators as to what the actual purpose of this court your honor being your for a few decisions on preemption conflict or or requirement that the manifest purpose of that statute is for public health and safety not to allow products into the market but to prohibit unsafe products from entering the market so and indeed there is no federal law federal statute federal case that's that states that any particular food products  are must be placed into the market of course of course i think you're right about that and i you know i think you can assume that i agree with you on federal preemption for the purposes of this question but i want to go back to this statement that is specifically in florida statute and my concern with reading it the way that you're suggesting we read it is it basically makes it a relevant because but i think the way you would have us read it is to say the question is whether federal law perhaps something and if that's the only thing that this statement in florida's law does then it's just irrelevant because a federal law perhaps florida's deceptive practices act course it doesn't apply but it seems like florida was trying to get judge but i think that there were talking preemption we're talking about a blanket issue and that is something preempted it's preempted but i think you have to look on a case by case basis as to whether the federal statute permits something basically allowing there's a preemption issue just federal preemption but florida as a state is saying we're going to allow you to be excluded from said to us adopt a claim a federal law permits and particular act of practice so in this particular situation a federal regulation permits the use of grains of product does not know that it's illegal to sell product and yet they advertise it as being a product that can be sold in the state of florida without disclosing that it cannot that is a deceptive practice your hon i don't know about direct contact your honor but direct benefit and i think it is a direct benefit that every time a customer customer buys a product produced by a car the picardy benefits they're buying so i think clearly that the that we there's nothing in the record about that judge but i have to imagine that the answer is no and that there is a potential for more litigation but yes but that but there's nothing in the record in that regard judge paradise and alcohol more than one hundred and fifty years ago florida enacted that law to protect public health whether the law continues to provide public health protection is a question for the or the legislature but there's no question that florida and every other state has s is the authority to protect public health and acting laws and regulations that are stricter than federal standards governing and that authority remains by julia and like to touch upon three key poin florida's law is not preempted by the food drug cosmetic act or f d a is implementing regulations and in particular it does not frustrate the purpose of those federal acts so there is no conflict now action second florida's law is not an outli many states have enacted laws stricter than federal standards governing and rd if this court affirms the district court's pre action finding which it should not it must make clear that its ruling does not extend to manufacturers secret say to determine each its first of the various forms of potential preemption only one is are mostly possible here and florida's law is not conflict you have to the contrary it is entirely consistent with the defined otherwise the district court ignored the plain text of the amendment and instead it misread its legislative history to create a secondary goal focused on national uniformity that simply does not exist there is no conflicting number of expressed reaction causes but none of them apply to state good safety last second florida's law is not unusual many states have exercised their authority to protect public health and acting laws and regulations that are stricter so for example washington state banned caffeinated alcohol and beverages after those drinks were linked to multiple deaths before f d a took any action and the f d a continues to consider most uses of caffeine to be generally recognized as safer gratz second in some instances states reasonably conclude that the federal government hasn't gone far enough to protect public health so for example new york state has imposed a ban on the use of certain food safety circumstances which it cannot reaction is especially inappropriate here in the context of a grass regulation that's because f d a is grass program is plagued with problems and it fails to protect public health for at least two key reasons arced f d a fails to oversee new grass determination it has grass absences must be safe by definition congress didn't require them to undergo rigorous pre market see to reveal it for at least twenty five years after he has allowed manufacturers to sell started by chemical substances as in secret without any notice at v a or the public as a result experts estimate that approximately underlying all of the judge decisions with the issue of adulteration which is the key issue in this case st it's important to note that the appellate doesn't claim that grains of paradise adulterate any liquor with and then there's a list of items including grades of paradise and then it says or any other substance that is or injurious to i'm don't understand why not i think i don't understand why you do this in your brief either because it seems like by far the weakest argument but you're not being prosecuted for violating the statute so the question isn't whether the i agree with you but this statute has no private cause of action and it is not a predicate statute under foot up the it doesn't qualify as either the plane at this merely referring to the statute as automatically creating liability simply because greens of paradise is in a product and unless you read the words of the statute out you can't come to that conclusion in fact the united states supreme court us code blocks law to kill harry defines adulterate as quote to debase or make impure by adding a foreigner inferior substance including why would we use a very specific definition that appears in another statute unrelated to this one instead of just using the general term adultery which doesn't seem to have anything to do with injurious nature be the only definition of adulterating of food or substance are contained in the reconstruction legislature in florida adopted very idiosyncratic terms that were i mean as defined in later federal regulations and later laws why when they will well many times the state looks at the issue based on scientific analysis it determines that this definition must apply to the word adulterated which effectively repeal portion of the statute before it had any different to conclude that is something is automatic automatically an adulterer just because you lose it so they don't and by the way judge it's important to note they don't allege that the product is adulterated only as a result of that statute they don't let any facts of adulteration adulteration means you change your product that make it injurious to health or runs they don't know why the name that though in the dictionary definition doesn't doesn't include that i guess that's why i'm having a difficult time figuring out why how do you wrong when you say it means that you're not citing to a dictionary you're citing to other statutes don't believe you should rely on the dictionary and such and more so you believe the correct mode of statutory interpretation is to find the definition of a term in some other statute in the same state and then just say that that's what we're going to use drought the entire kind of grabbed that term is used that's the way we're supposed to do this well when the state speaks to that exact subject matter yes in fact the state of florida as you know adopted later law they affected that were sealed the firewall they didn't address that issue but the duration is not the fine and the criminal statute and importantly the florida and federal law pollutes ingredients that are generally recognized to safe brassed as additives because they don't change the nature of the food they may flavor they make create a smell but they don't change the nature of the food to be understated and florida agrees and one hundred and sixty three dollars bart adopted the exact same exempted substances that the federal government including brings  banned from entering the market but they want to ban it from being in a liquor product in florida which is just totally inconsistent with their position and as a judge will do it as obviously we meet standards of the safe harbor provision under fedup and that says anything specifically permitted by federal or state law here grains of paradise is permitted by both federal and state law to be safe added to food being drinks i mean there is no other brass lives there is no state brand with the federal government but a great deal of everton do creating this list so the people would know in that case the plaintiffs brought up the delta claim against tito vika claiming that they purchased the baka relying on some misleading we don't even have that here but nevertheless the court ruled in that case that because the t t be permitted back kind of labeling it meant the safe harbor provisions of florida law beijing has the same t t v approval missal stage you can dismiss also they haven't met any of the elements of the dump them which are accept of an unfair practice sation damages resulting from a deceptive  act or deception you have to mislead someone here it was etched in the law we didn't mislead anyone and also in their complaint they admitted they knew it was in the bottle and they bought it anyway they consume that they weren't injured and you could only on that point one specific point could you talk about them or not us a little bit because i think that is wh substance that had already been banned by congress as is legal and so into that there are a conclusion that when you have a substance in a product that was banned by congress as being the substance of the product was illegal to sell here you have the opposite you have the federal and state government both saying raise a paradise is a safe ingredient so it doesn't meet that narrow abduction and it doesn't meet the definition of a defect remember under any definition a defect asked to be something in a product that causes it to be injurious to others no deception on fairness damages can flow from that and the food additives amendment was enacted by not only consumers but manufacturers in retail with assurances about safety of ingredients they could add to booth for two reasons  to protect the public from harm and nd to allow the public use a can greetings and those the two goals of the act that are set forth in the statute in the congressional and it's also on the face of the statue word and seems more like a field preempting argument than a conflict preemption seems like you're just suggesting that congress regulated the entire field the size of all the same decided i was not saved and therefore states can't do differently than that conflict for the federal government to not ban something for a state to decide to ban something i was that ever a conflict well your honor we cited the p h o cases the substances should be banned as being unsafe and we cited beasley versus connector brands and the grass scheme was utilized there as the basis for and the court in the federal court looked at that they said no to interpret a state law as prohibiting something that's on the grass list is in direct conflict with the federal regulatory scheme and it must be for him we have that your honor i believe for all those reasons both if they can't meet any of the elements of the state claims and  they're in direct conflict with the federal regulatory scheme the porch uphold the law report thank you thank you judge so let me start with that last point on the cases beazley cases regarding ph owes the because it was right in with the rest of this argument that the state action that was filed in those california cases was for a determination that p h o's were unsafe and the federal government has determined that they are state so that clearly was preempted our action here is not founded on any allegation that grains of paradise is unsafe and it's totally unnecessary for us to prove that it is muncy all we need to prove is that it's illegal to sell in the state of florida and goes into the into the store to buy a product they don't expect the product is illegal to be sold they assume the product is legal to be sold and the mere fact that it's the so that's the deceptive acts federal statute does not permit the sale of a group of liquor that has grains of paradise what it does is placed grains of paradise on a safe list and say it's it's safe to consume this would be like saying that the i don't know the names of the statues but the federal statutes governing automotive said safety also don't permit our don't prohibit the sale of grains of paradise in liquor because they don't but that doesn't mean that is permitted by that federal statute is just totally irrelevant it's a non sequitur simply because it's deemed safe to sell doesn't mean that it must be permitted to be sold so it does not fall within the safe injurious reprieve human consumption that's just absolutely not true even in the partial definition of adulterate that he gave in regard to the florida food safety act the rest of the definition states said that milk that had less than two chocolate milk that had less than two percent fat in it was quote adulterated even though again specifically found that it was not injurious to health so we clearly fit within the definition of adulterated as that that word is used in the florida statute which precludes the sale of this food product i see that my time is up and that and if investors any more questions i'll be glad to