that consumption of our saying that it would consider exercising enforcement discretion not to enforce that offer products that make other times for lesser amounts and have some wow do you agree that i why is no trans fat different so no trans fat is different the regulations say it's different so the regulations say that no trans fat characterizes the level of france that in the product as a as opposed to merely conveying a factual statement about the amount that's the regulation is is twenty one c f r one hundred one point thirteen i three and this is evidence by the f d a is letter to best life which is in the record where they said you're not allowed to say no trans and you can say zero grams trans fat and basically what the regulations recognizes that or at least i assume is that consumers are familiar with the purser being rules in the nutrition facts so it's actually not the case that this product friends for cholesterol for saturated fat for total fat but it made a decision as a trance i wasn't going to commit this type of characterizing language because because of the scientific consensus an artificial fashion is so harmful there could be no it's i'm not you're not going to concede anything i can see that so but if you look at the two if you can find your your claims into two nature is is one is the preemption evidence stronger on one and the other substances and has to have at least ten percent of the daily value of one of those substances without adding it has to naturally have this product has never met minimum contribution current so even if if the cargo letter could finally ruled on that so it wasn't what was going on there i soon another southern district is very very busy court you know it's got a lot of criminal actions and it was like fourteen months between when you argued it and when you heard there was no argument  a makes public his warning letters as part of it's an enforcement process and courts regularly rely on these unfortunate letters for to make you know to understand what the regulations are no i don't think you need this letter i think you can and that was tonight campbell lab right that's right all right but you're asking us to look at that that's right and i think that this is entitle to chevron deference on the interpretation of the statute and that because you know the argument that mcneil is making is that now zero in a vacuum so we can say zero grams why can't you say you know trans fat and you know there's some appeal to that argument someone appeals to that argument but the regulations make a distinction between that and you're not allowed to say no trans science is developing and then you get to litigate them right and there could be a time where the science does become more developed and then they could authorize and then they would be preempted right that's what you're claiming to be in a window well not really because these are your claims that just are being developed these claims are actually not authorized by their own authorized by the regulations now what is being developed by that but if they were authorized in the future then they would be preemptive well you could i guess you could say that about any claim on any food you know sometime in the future the f d a may allow you to say you know your stance or but you know if there's no i mean but in the end around when something is an authorized or not authorized we're allowed to  so i like the statements such as no fat and no saturated fat the f d a explicitly decided not to authorize trans fat free claims of the type that mcneil makes on the b benecol label so given that the f d a intentionally decided not to act in this case how does preemption apply to the no trans fat point look at the no trans fat claims of the nutrient content claims and it applies because i don't these it only applies to stack juice and in active formal regulations that trooper statures this letter is an informal adviser e opinion the f d a has taken the position repeatedly is an informal i mean they're not doing it for litigation purposes or any it's not i think this their way nan here because they're being sued or something actually it's even less informal than that because this is before the gauge this is a letter that's a warning to an individual and under the price versus ever during case it wasn't a preemption or force of walkies it was a question about the level of deference to be given that was applying united states versus need out of the supreme court which held that you cannot you have to have some formality and the two explains this is an individual employee and if you look at the letter your honour's doesn't do analysis it just makes an allegation that this is no trans bad it doesn't talk about the regulations it doesn't have the benefit of the response that received in  importantly it conflicts with and doesn't address the regulation which authorizes the use of synonymous terms well let me ask you this you haven't said this and so i'm assuming it seemed to me that you just took part was clearly wrong about them not having standing you haven't really said much about that i just don't it seems to me a face plant enough to have standing there well i don't believe they have and they haven't played enough to have standing  you have to have an injury in fact that leaves what they said they wouldn't have bought it but for the misrepresentations and there's there's case law to support that so it will not have these facts and the reason is you have to alliance in the bus or is related to the misrepresentation that you claim harmed you so you have to have a promise of something and then pay for it and then you have to say what i was promised did not occur depends on the promise that is made and that's like the quickstep case which i believe brown is referring to and that specific case it was a walk was made in the united states and they said it was not made in the united states it was  have bought if you had just told the truth we would have walked away from the deal so we don't have to allege you know we may have gotten the better deal than we thought we might have gotten a great benefit from i won the lottery doesn't matter point is we would not have ent store and you give the cashier the whatever it is three dollars or whatever for the product that product hasn't caused you harm you have to lose money or property that's under that business a profession i don't  so we were injured by paying money that would not have paid if you just told the truth well i don't know how you get around that and i think you're burning up a lot of your time while i'm traveling with with with smoke and mirrors i think that's inconsistent with proposition sixty four which so short of a heart attack or something like that there's no standing now it depends on the representation is here they can just walk through the birth historian take every single product and say this one of them awful this once and while it completely subvert subverts the reliance and causation well difficult to read plus the regulations which are absent and difficult to read well there's no requirement that food labels explain the regulatory cases of every state on them on the label so i said i see your point he you have a response to that i do have a response so that my response as follows we moved to dismiss the entire complaint and the district court granted a motion it is a comment upon mr reed to raise his arguments to the district record this isn't over review the primary jurisdiction doctrine applies regardless of the vitamin issue because the f d a under consideration now and the rule that they submitted with the federal register is evaluating both and whether or not any level of trans fat should disqualify the issue and i'm actually going to defend my opponent here because the twins that rule that he brought up that the f d a filed this fall saying that they're looking at eliminating partially semiconductor from this court and under the of course clark first time warner cable this is what primary jurisdiction is about and i want to add something that's happened subsequent to the i'm not to do it in this case because my apologies rather i didn't see the relevance because they were at the primary issue at some point you came up with the relevance of it was it just standing here at some point  noncompliance with the two thousand and three letter of force and discretion and it is not relevant to the primary jurisdiction arguments that were asserted below and under this court's authority is the syntax semi conductor in  in the first place you have the other side made the interesting argument that your client has forced it on the turn of the complaint by saying he read the entire label so therefore he must have known that there was transcribed in it when he bought it so what's the  point is you can't read you can't read that part unless you until it wasn't until you buy it and rip it up right and not only that but i think the argument is precluded by this court's decision with williams vs gerber where it said that reasonable consumers don't have to s i think he certainly has standing  the store where someone might get really mad and i would say is probably precluded from doing that by certain laws and one last thing i wanted to touch on was the idea that the compliance with the minimum contribution requirement was