versus united states mr richter search were a breath freshener and the fact that so it's a statement is not necessarily the holding of the case maybe it was an observation made by the court as part of its reasoning but the holding would be a little different when among those of the fact that it's a breath pressure on it the fact that it contains flavors that mask or on ours the fact that all perfumes aren't compassed within the head and by the explanatory notes the fact absorption to break down necessary functions in a paragraph only slightly before we agreed with you would that make every chewing gum classifiable under this session under the section need not concern today what concerns you is with all respect the classification of magic strips now not much sooner if you go harass before stating would meet the higher standard this year and that the problem is you wouldn't have enough evidence on summary judgment to satisfy the standard of cleansing right now we believe we will hear the well but that's at least a question of judgment was appropriate for the government was that the trial court could not determine that any lack of evidence the trucker determined that our evidence was not to be trusted that because it was in t unconvincing and self serving that it wasn't to be given full credit now we contend and the case was quite clear that those are judgments they're reserved for trial determining who's evidence is more credible who iran or the affidavit evidence given in support of the contention that magic strips contain bacteria defeating bacteria killing products was supported by published materials now the government discounts those published materials but rebuts them with internet sources of its own and no greater or more valuable evidence than that presented by the writer in to the extent that they  district court's judgment about your evidence but why isn't it appropriate on summary judgment to reach the conclusion that the statements are simply too conclus evidence he can't dismiss a question of fact that he can evaluate it to side if there is a sufficient basis for summary judgment right there is an evaluation is required but the evaluation is not who is more credible but rather is there sufficient evidence to create a trial issue but his is his language was whether it's serving which is kind of a way of saying it doesn't rise to the level of because that's not clean it's not doing anything as you're going to recognize mint candies gone temp back out of cigarettes that have menthol in down would also perform the same thing and masking a flavor the main arguments that the other side makes is that they are the world you magic strips are all perfume and that in a word or lambert decision there we basically looked to the explanatory no and said this is an oral perfume let me ask you would you agree that magic strips are or perfume because for the moment the force of being an oral perfume for purposes of the classification no we agreed that magic strips can mask flavor can sense your bra the next question is is that of all perfume which leads to a traditional legislative history for the explanatory notes to tell us what oral perfume means but it's not a term used in the united states so we don't know what it means so you're saying that if one were to take the position that you are an oral per you you come within thirty three zero six you'd say there would still have to be here are some kind of a proceeding to determine whether the magic strips or do constitute an oral per you know we need to decide what oral perfume i and then once we've defined that do they fall within it is that hard to do though i mean isn't it kind of easy to determine whether something is or perfume wouldn't be anything invade your breast milk better but no that's the point that would be true except explanatory notes cannot expand it taraf heading so something that simply make sure presto better is too broad of a way to define moral perfume because they still must be and most importantly it must be an oral or temporal hygiene product disease cleanliness it isn't necessarily killing germs that's really what feet bottom line of warner lambert is it doesn't necessarily have to physically kill bacteria but it's got to have some sort say that it covers all perfumes but there is no definition of what is an oral perfume and your perfume is probably something that century mouth that also has an eight cleanliness spawn and that's why it's place when it says mouth watches and or all perfume evidence that that drug that chemical reacted with sulfates in your mouth and and negate that it actually physically did something in this case we do problem with that argument are one pushing alone cannot be enough and no case is ever found that it is because anything that sour sour candies can cause you to purge anything you put in your mouth can do that so that's not enough point odor but it's not going to have an cleansing effect but the tariff requires it that heading up the terrace is oral and dental hygiene hygiene must mean something it cannot simply mean to make something smell better because it could be a sour mant because it does coins by purging words that are did not address the circumstances we have here looking at the term moral perfume alone i think it would be an expansion of to suggest the court held in that case that each description within the explanatory notes individually even one would be sufficient to qualify if a product for or hygiene distinguishing characteristic in your mind is like mine it would be whether it neutralizes chemicals in your mouth like the search did or whether it did have its bacteria because the other two things that this court found kind of about how awful things cause salivation and that's a purging you thing if you had an oil perfume something that made your breath smell nicer and it also caused salivation you would say it would be your my understanding of then almost all sugar and they are perf you know they that isnt enough and the whole point of this is that we have candy to not be a dental hygiene product and if you want to look at  it does perfume have to have a the the note says or perfume which heads us down this road at least away as we know it's not binding but it's certainly places us in this position definition of something try isn't it good hygiene to smell good rather than to smell bad so then you have to turn to what exactly is hygiene and this courts did well in the court said did said it's not just a broad call isn't right that my hygiene is better if i just put on the perfume even though i haven't taken a shower because it was clean and it's making something smell better to your mouth it's not cleaning that is just putting a romantic human spine better in the air inserts the court said no it doesn't have to kill bacteria but it must do something and that put it look to the fact that it reacted with  well i don't know they are more cosmetic i do not know how it went through oral perfume i don't know they may well have something in them to ensure that germs don't grow and that dentures are attached i'm sorry i didn't become familiar with or cause bad breath and so forth so what i'm saying is by referencing these various publications i think the decorations you're go beyond being just sort of conclusory status that best that not that menthol may kill some germs but that doesn't the evidence maybe suggest the it may or may know but can one make the argument that the evidence that is re decided we were more convincing than that there is no evidence there's not any epix on those critical points had they had a declaration that covered any and that this would be a completely different argument but they don't and that's why function that evidently rhett's and yes you i mean how would you bring yourself into the same category as the service men in warner lambert the direct answer to question  subcategory for all the products that have rights in it and that we would honor our your honor was not to hold the whole thing was that you don't have to have products that actively kill or clams bacteria that you could have products that mask a second possibility the a radical possibility is to reverse the decision and say judgment of summary judgment should be entered your favor and it seems to me that nor did to do that one has to reach two conclusions one that being a perfume is enough and two that magic strips are perfume there's no fact about that right don't you have to arrive at those t that being an oral perfume is enough that would be one way for us to fight our way we would contend that the other way for us to fight out we would be dad the government's expert states that the placement of anything in the mouth we would win if salvation is enough we wish that your contention your honor