[00:00:03] Speaker 01:
Good morning, your honors.

[00:00:05] Speaker 01:
May it please the court?

[00:00:07] Speaker 01:
I'm Charles Weller on behalf of the appellant.

[00:00:09] Speaker 01:
I'd like to reserve three minutes for rebuttal, please.

[00:00:12] Speaker 02:
OK, watch your clock.

[00:00:13] Speaker 02:
I'm going to be very strict on time limits today, just so you all know.

[00:00:17] Speaker 02:
And if you end up not having anything left to say, just sit down.

[00:00:27] Speaker 02:
You don't have to use all your time.

[00:00:30] Speaker 02:
OK, go on.

[00:00:31] Speaker 01:
Thank you.

[00:00:32] Speaker 01:
The Consumer Legal Remedies Act makes it unlawful to represent that goods have characteristics that they do not have.

[00:00:41] Speaker 01:
That's what KLN did here.

[00:00:43] Speaker 01:
KLN's label states that the product is naturally flavored and free of artificial flavors.

[00:00:50] Speaker 01:
The complaint plausibly alleges that the product contains artificial flavoring.

[00:00:55] Speaker 01:
The district court, nevertheless, dismissed because the product label

[00:01:01] Speaker 01:
did not say all natural, 100% natural, or free of artificial ingredients.

[00:01:10] Speaker 01:
But the CRA prohibits false representations about a product's characteristics, including the flavoring.

[00:01:18] Speaker 01:
Under Moore v. Maher's pet care, there's no protection for literal falseness.

[00:01:23] Speaker 01:
The judgment should be reversed.

[00:01:26] Speaker 01:
In this case, the label makes two express flavoring statements.

[00:01:31] Speaker 01:
naturally flavored and free of artificial flavors.

[00:01:36] Speaker 01:
The complaint alleges that the product contains synthetic DL malic acid, which is being used to simulate the fruit flavor.

[00:01:44] Speaker 01:
At the pleading stage, this allegation must be accepted as true.

[00:01:49] Speaker 01:
If artificial flavoring is used, then those flavoring representations are false.

[00:01:56] Speaker 01:
And even if naturally flavored were viewed in isolation as ambiguous, the analysis does not end there.

[00:02:03] Speaker 04:
Council, can I ask you about the front label?

[00:02:07] Speaker 04:
So is it your representation that the front label says naturally flavored and that that is unambiguous?

[00:02:15] Speaker 04:
Yes, your honor that is our that is our position that it says naturally flavored and that it's an unambiguous claim council I was looking at the record and I Don't know why you didn't make this argument, but the front label also says free from artificial colors and flavors in er6 That's an astute observation your honor.

[00:02:38] Speaker 01:
It was not played in our complaint

[00:02:41] Speaker 01:
But that is what the front label does say.

[00:02:43] Speaker 01:
This case comes down to one simple thing.

[00:02:47] Speaker 01:
There's an express statement, express flavoring statement, of no artificial flavors.

[00:02:54] Speaker 01:
And we've plausibly alleged that this product contains artificial flavoring.

[00:02:59] Speaker 01:
And under more, there's no protection for literal falseness.

[00:03:03] Speaker 04:
But wouldn't a reasonable consumer, seeing the package, the bright colored fruits, shelf-stable product, candy licorice, presume that it's puffery or it's not literally true?

[00:03:20] Speaker 01:
Under, no, Your Honor, under the CRA and under more, it makes it clear that there's no protection for literal falseness.

[00:03:31] Speaker 01:
This product contains specific express flavoring statements.

[00:03:36] Speaker 01:
And that specific express flavoring statement is no artificial flavors.

[00:03:41] Speaker 01:
That's a characteristic of the product that's protected under the Consumer Legal Remedies Act.

[00:03:46] Speaker 01:
And this court in Moore made it clear that literal falsity is actionable.

[00:03:54] Speaker 01:
But even if naturally flavored were viewed in isolation as ambiguous, the analysis does not stop there.

[00:04:01] Speaker 01:
In McGinnity v. Proctor and Gamble, the label must be evaluated as a whole.

[00:04:06] Speaker 01:
And the ingredient list may confirm or contradict a front label representation.

[00:04:12] Speaker 01:
Here, the label expressly states, free of artificial flavors.

[00:04:17] Speaker 01:
That's on the back, and as Your Honor pointed out, also on the front.

[00:04:20] Speaker 01:
That statement confirms, rather than contradicts, the other front label representation that the product is naturally flavored.

[00:04:30] Speaker 01:
KLN also points to the ingredient list in this case.

[00:04:34] Speaker 01:
If you consult the ingredient list, it says only malic acid.

[00:04:39] Speaker 01:
It does not disclose whether the malic acid is natural or synthetic or if it serves any artificial flavoring purpose.

[00:04:49] Speaker 02:
Malic acid can do both, right?

[00:04:51] Speaker 02:
Malic acid can serve as an ingredient or serve as a flavoring.

[00:04:56] Speaker 01:
Yes, that is correct, Your Honor, and we have plausibly alleged in our complaint that the synthetic diol malic acid is functioning as a flavor in this product.

[00:05:06] Speaker 01:
It simulates the fruit flavor in the product.

[00:05:09] Speaker 03:
But Council, isn't the malic acid, wouldn't it be okay for us to realize, a reasonable consumer may not know that malic acid can be either natural or artificial?

[00:05:22] Speaker 01:
Yes, that is correct.

[00:05:24] Speaker 01:
In fact, there's nothing in the ingredient list that would lead a reasonable consumer to believe that anything in the product is artificial if we go that far.

[00:05:31] Speaker 01:
So the ingredient list does not help us.

[00:05:33] Speaker 01:
But if we look to Williams v. Gerber, consumers are not required to look past and express representation to discover the truth from the ingredient list.

[00:05:44] Speaker 03:
I want to go back to what Judge Tong was talking about.

[00:05:47] Speaker 03:
We're talking about licorice here, and it's bright.

[00:05:49] Speaker 03:
Bright red, pink, licorice.

[00:05:52] Speaker 03:
Is it unreasonable for the district court to think there's no way someone looking at bright pink licorice or red licorice is going to think that it's natural?

[00:06:01] Speaker 01:
That is the position the district court took and that position is wrong because of the express flavoring statement.

[00:06:09] Speaker 01:
KLN knows there's a premium to products that have natural flavoring.

[00:06:16] Speaker 01:
They've specifically called out that this product is free of artificial flavors.

[00:06:22] Speaker 01:
That statement is false, and that statement is actionable, and that's what this case is about.

[00:06:26] Speaker 01:
It's not about a product being all natural.

[00:06:29] Speaker 01:
It's about a product that falsely represents there's no artificial flavoring.

[00:06:34] Speaker 04:
What about KLN's argument that malic acid is merely an enhancer, a flavoring enhancer, not a flavor itself?

[00:06:44] Speaker 04:
So if they're right about that, why don't you lose?

[00:06:49] Speaker 01:
Your Honor, that is a highly technical issue.

[00:06:51] Speaker 01:
It's also a factual dispute, and it was not something the district court

[00:06:56] Speaker 01:
held or ruled upon in the lower court.

[00:07:02] Speaker 01:
Under Singleton v. Wolf, we can't resolve something that the district court has not made a finding on.

[00:07:08] Speaker 01:
That may be a factual dispute that we explore and discover in this case.

[00:07:13] Speaker 01:
There was another ground that the district court dismissed on.

[00:07:16] Speaker 01:
It concluded that artificiality was not pled with sufficient particularity.

[00:07:22] Speaker 01:
That was also error.

[00:07:24] Speaker 01:
The complaint identifies the laboratory, the date of the testing, the isomer testing, detecting the D form of the malic acid, the regulatory basis, the DL malic acid does not occur naturally, the synthetic origin, and the role that it plays in flavor simulation.

[00:07:42] Speaker 01:
We have pledged the who, what, when, where, and how of the alleged fraud.

[00:07:46] Speaker 01:
And Rule 9B requires particularity, not proof.

[00:07:52] Speaker 01:
At the pleading stage, plausibility is sufficient.

[00:07:57] Speaker 04:
Council, how have you pled the how, the methodology that resulted in the lab finding that there was a DL malic acid and not a mere L malic acid?

[00:08:10] Speaker 01:
Your Honor, I will refer you to paragraphs 24 to 28.

[00:08:15] Speaker 01:
of the first submitted complaint, 31 and 32, 41 and 43.

[00:08:20] Speaker 01:
In short, the complaint plausibly alleges that synthetic DL malic acid is being used to simulate the fruit flavor and that the D isomer was detected in testing and that malic acid does not occur naturally and that it has a role in the flavor simulation in this product.

[00:08:47] Speaker 02:
We're just looking at the complaint now.

[00:08:51] Speaker 02:
And I'm wondering if you allege that you lack an adequate remedy at law to support your unjust enrichment claim.

[00:09:03] Speaker 01:
We pled that relief in the alternative under Sawner at the pleading stage were entitled to alternative remedies.

[00:09:12] Speaker 01:
And that was something that we pled in the alternative.

[00:09:17] Speaker 02:
Okay.

[00:09:18] Speaker 02:
Can you tell me where?

[00:09:22] Speaker 02:
Just tell me what paragraphs I have to complete.

[00:09:38] Speaker 02:
Is your arguing we should reverse on the unjust enrichment claim too?

[00:09:43] Speaker 01:
Well, the unjust enrichment claims pled in the first minute complaint paragraphs 81 through 88.

[00:09:54] Speaker 02:
How much time did you want to reserve?

[00:09:58] Speaker 01:
I'm going to summarize right now and save my rest for rebuttal.

[00:10:02] Speaker 01:
To summarize, this label says naturally flavored.

[00:10:05] Speaker 01:
It says free of artificial flavors.

[00:10:08] Speaker 01:
The complaint plausibly alleges that the product contains artificial flavoring.

[00:10:14] Speaker 01:
Under the Consumer Legal Remedies Act and this court's decision in Moore, literal falsity is actionable.

[00:10:23] Speaker 01:
The district court should be reversed.

[00:10:26] Speaker 02:
Thank you counsel.

[00:10:27] Speaker 00:
Thank you You're seeing Thank you May it please the court J. Singh of Foley and Lardner for defendant Kaylin Your honor on the issue of

[00:10:56] Speaker 00:
the unreasonable consumer standard, the plausibility of the allegations as to whether the Malik asset here was sufficiently alleged to be artificial, we're going to submit on the papers.

[00:11:10] Speaker 00:
I think it's been argued the court has asked questions, unless there are specific things that the court wants me to address as it relates to that, where I actually would like to focus the court.

[00:11:20] Speaker 00:
Under Sonner, anything argued on the record

[00:11:24] Speaker 00:
whether or not it's in the order, if it's relied on by the court, which presumably it was, reviewed by the court because it's highlighted in the briefing, can be grounds to affirm a dismissal.

[00:11:40] Speaker 00:
Where I would like to focus the court, and it was raised earlier, is the question of whether this complaint, as it's alleged,

[00:11:50] Speaker 00:
asserts affirmative allegations that essentially support and establish on the complaint that the malic acid here served as a flavor enhancer.

[00:12:00] Speaker 02:
They don't have to establish that.

[00:12:03] Speaker 02:
They just have to, at the motion to dismiss stage, just plausibly allege that it served as a flavor here as opposed to an enhancer.

[00:12:14] Speaker 00:
Yes, Your Honor.

[00:12:15] Speaker 00:
And what I'm saying is it doesn't plausibly allege

[00:12:19] Speaker 00:
that the malic acid here served as a flavoring agent.

[00:12:24] Speaker 00:
Rather, it plausibly alleges, what I mean by establishes, this complaint based on affirmative allegations plausibly alleges that the malic acid rather served as a flavor enhancer.

[00:12:39] Speaker 00:
And what I'd like to do to just give the court an understanding of where I'm going with this is simply talk about the definition of flavoring agent and flavor enhancer

[00:12:48] Speaker 00:
in the regulations and then cite to specific allegations in this complaint, factual allegations, which under the plausibility under Iqbal Twombly have to be made, factual allegations that support that the malic acid here

[00:13:05] Speaker 00:
or plausibly allege, Your Honor, that the malic acid here served as a flavoring enhancer.

[00:13:10] Speaker 04:
But then the plaintiffs allege that the malic acid was a flavor and that it was an artificial flavor, thus rendering the label false.

[00:13:19] Speaker 04:
Isn't that enough?

[00:13:20] Speaker 00:
In a conclusory way, Your Honor, they took boilerplate language from the regulation

[00:13:27] Speaker 00:
and jump to a conclusion.

[00:13:28] Speaker 00:
But the actual factual allegations, if the court will allow me, that's in the first submitted complaint, actually don't establish that.

[00:13:36] Speaker 00:
It actually establishes that it's a flavor enhancer.

[00:13:38] Speaker 02:
By the way, would a reasonable consumer understand, I mean, I just learned about this for the first time, that there's a distinction between flavoring agent and flavoring enhancer.

[00:13:56] Speaker 02:
And I guess my question is, would a reasonable consumer shopping for licorice have that distinction in mind?

[00:14:07] Speaker 00:
Sure, Your Honor.

[00:14:08] Speaker 00:
It's actually two separate analyses.

[00:14:11] Speaker 00:
The reasonable consumer standard analysis and whether or not the allegations here plausibly allege that the malic acid or sufficiently plausibly allege that the malic acid is a flavoring agent versus a flavoring enhancer.

[00:14:26] Speaker 00:
Those are actually two separate analyses and arguments.

[00:14:29] Speaker 00:
A reasonable consumer likely would not be charged, it's an objective standard, likely would not be charged with knowing one way or the other whether a particular ingredient serves as a flavoring agent versus a flavoring answer.

[00:14:43] Speaker 00:
It's important, however, because as plaintiff's counsel started this whole argument,

[00:14:51] Speaker 00:
it goes to whether or not there's literal falseness or deception here.

[00:14:55] Speaker 00:
In other words, if in fact this complaint plausibly alleges that the malic acid is a flavoring enhancer, if that's the case,

[00:15:07] Speaker 00:
then all the other claims, the CLRA claim, it falls.

[00:15:13] Speaker 04:
But the CLRA also prohibits misleading statements, right?

[00:15:16] Speaker 04:
Not just literally false statements.

[00:15:19] Speaker 00:
Correct.

[00:15:19] Speaker 00:
But if it's a flavoring enhancer, you don't have a regulatory violation in terms of having to put artificial flavor.

[00:15:26] Speaker 00:
In other words, the label as it stands actually follows FDA regulations.

[00:15:32] Speaker 00:
And in fact, what you would have instead, Your Honor,

[00:15:35] Speaker 00:
is a preemption argument.

[00:15:36] Speaker 04:
But have you made a preemption argument?

[00:15:38] Speaker 00:
There was no need, Your Honor, to make a preemption argument.

[00:15:40] Speaker 00:
In other words, with where the complaint was alleged, the argument to be made was that it's a flavor enhancer based on the allegations.

[00:15:55] Speaker 02:
All right.

[00:15:55] Speaker 02:
I'm looking at paragraph 22 of the first amended complaint.

[00:16:00] Speaker 00:
Yes, Your Honor.

[00:16:01] Speaker 02:
It says, these statements talking about the

[00:16:04] Speaker 02:
back label actually, free of artificial colors and flavors.

[00:16:11] Speaker 02:
And it alleges these statements are false and or misleading.

[00:16:15] Speaker 02:
All of the products contain an ingredient known as malic acid which is used as a flavoring in the products.

[00:16:23] Speaker 02:
The form of malic acid used in these products is artificial.

[00:16:27] Speaker 02:
I set forth in greater detail below and then it goes on.

[00:16:32] Speaker 02:
Understand how you're saying that they're not plot.

[00:16:36] Speaker 02:
I mean this is stating a claim you haven't even filed an answer Sure, but this could be to me.

[00:16:43] Speaker 02:
This is more of a question of fact.

[00:16:45] Speaker 00:
Let me just Let me just walk you through because that's actually not the allegation in the in the amended complaint your honor that supports a

[00:16:54] Speaker 00:
the assertion that this malic acid serves as a flavoring agent.

[00:17:00] Speaker 04:
Did they have to plead that it was a flavoring agent?

[00:17:02] Speaker 04:
Correct.

[00:17:03] Speaker 04:
You're saying that a reasonable consumer, average person who goes to the grocery store, has to plead that it's not under the reasonable consumer test, Your Honor.

[00:17:15] Speaker 00:
In other words, whether or not this label would deceive

[00:17:24] Speaker 00:
a reasonable consumer, that's a separate analysis as to whether or not the malic acid in this product serves as a, you know, in other words, in order to state a claim, I think this is a better way to explain, I apologize, in order to state a claim, period, plaintiff has to allege two things, possibly.

[00:17:48] Speaker 00:
One, that the malic acid in this product was artificial,

[00:17:52] Speaker 00:
There was a discussion that he focused on with regard to that.

[00:17:56] Speaker 00:
But also that it's a flavoring agent as opposed to a flavoring enhancer.

[00:18:01] Speaker 04:
Why does he need to plead that it's a flavoring agent?

[00:18:04] Speaker 04:
Can't he just plead that the flavoring is artificial?

[00:18:09] Speaker 04:
And that malic acid was a flavoring agent.

[00:18:10] Speaker 00:
The assumption that you're making that it's a flavoring, Your Honor.

[00:18:12] Speaker 00:
In other words, when you say, can he just plead that the flavoring is artificial, you're assuming that it's a flavoring.

[00:18:16] Speaker 04:
But that's a question of fact, then, that can be disputed.

[00:18:20] Speaker 00:
It normally would be.

[00:18:22] Speaker 00:
But now let me just focus the court in on some allegations that establish that actually here what he's alleged is that, and it's in the briefing, but I want to focus the court in on that if I could, that what he's alleged actually establishes, establishes, supports or plausibly alleges that the malic acid serves as a flavor enhancer.

[00:18:45] Speaker 00:
I mean, so first of all, flavoring agent, definition,

[00:18:49] Speaker 04:
Sorry, counsel, I'm sorry to interrupt, but before you go there, why can't a flavoring enhancer, assuming you're even right about that, constitute a flavoring or a flavor that's encompassed with the meaning of the label?

[00:19:03] Speaker 00:
Because the FDA regulations make a distinction.

[00:19:05] Speaker 00:
That's actually precisely why.

[00:19:07] Speaker 00:
The FDA regulations distinguish between an ingredient that serves or functions as a flavor enhancer versus one that serves as a flavoring agent.

[00:19:18] Speaker 00:
That's why there was so much argument.

[00:19:19] Speaker 00:
That's why in the briefing, he responded, and there was so much argument as to what does this malic acid serve as?

[00:19:28] Speaker 00:
And that's really, like I said earlier, where the rubber hits the road in this case.

[00:19:33] Speaker 00:
And it's normally a question of fact, except when you plead yourself out of court.

[00:19:39] Speaker 00:
And you can look at Dunford, for an example of that, this court's opinion in Dunford, where if you have affirmative allegations,

[00:19:48] Speaker 00:
that otherwise established, and that's why I meant by established, because you take the allegations as true in the complaint.

[00:19:54] Speaker 00:
Otherwise established, what normally would be a question of fact.

[00:19:57] Speaker 00:
It's not in dispute anymore, and the court can rely on it in ruling on a motion to dismiss.

[00:20:01] Speaker 04:
Your counsel, I cut you off before you're about to get into this, but can you point out where then, in your view, plaintiff has pled himself out of the case?

[00:20:09] Speaker 04:
100%.

[00:20:10] Speaker 00:
Let me start with just the definition of the regulation so you can conceptually see what the definitions say.

[00:20:16] Speaker 00:
And then let me go to what the allegations are, and you'll see the connection.

[00:20:20] Speaker 00:
So first of all, flavoring agent.

[00:20:23] Speaker 00:
What the plaintiff is arguing, the malic acid serves here and says, I've plausibly alleged that.

[00:20:28] Speaker 00:
First thing he said when he was before this court this morning.

[00:20:33] Speaker 00:
So, a flavoring agent simulates, resembles, or reinforces, and this is the key part, the characterizing flavor of the product.

[00:20:45] Speaker 00:
That's 21 CFR section 101.22 I1.

[00:20:52] Speaker 00:
Now, flavoring enhancer.

[00:20:55] Speaker 00:
Flavoring enhancer, a substance that supplements, enhances, or modifies the original taste and or aroma of the food without imparting a characteristic taste or aroma of its own.

[00:21:08] Speaker 00:
And that's 21 CFR section 170.3011.

[00:21:11] Speaker 00:
Now, allegations in the complaint.

[00:21:21] Speaker 00:
Trammell alleges.

[00:21:22] Speaker 02:
Wait, what paragraph?

[00:21:24] Speaker 00:
Your Honor, we cited, I think it's paragraph 29.

[00:21:27] Speaker 00:
It's ER 31 in the record.

[00:21:30] Speaker 02:
I just want to know the paragraphs of the complaint.

[00:21:32] Speaker 00:
Sure.

[00:21:33] Speaker 00:
I think it's 29.

[00:21:34] Speaker 00:
I may be mistaken.

[00:21:37] Speaker 00:
But I'll read it to you, Your Honor, if it's maybe 28.

[00:21:42] Speaker 00:
But there is only a ratio between acids.

[00:21:45] Speaker 00:
These are the factual allegations.

[00:21:47] Speaker 00:
There's only a ratio between acids and sugars.

[00:21:50] Speaker 00:
that is naturally found in strawberries, and that malic acid can generally be used to simulate such a flavor from scratch or to adjust flavor notes.

[00:22:00] Speaker 04:
Sorry, Council, I'm looking at ER 31, but I don't see that.

[00:22:04] Speaker 03:
I don't see that either.

[00:22:05] Speaker 03:
Or in 28 or 29.

[00:22:07] Speaker 00:
I believe, is it paragraph 29?

[00:22:12] Speaker 00:
No.

[00:22:12] Speaker 04:
No.

[00:22:14] Speaker 00:
Okay.

[00:22:15] Speaker 00:
I apologize, Your Honor.

[00:22:17] Speaker 00:
I can...

[00:22:18] Speaker 00:
Confirm that that is a rookie mistake and Let me pull You're down to three minutes I'll finish up your honor sure, so The So this is another specific allegation that

[00:22:41] Speaker 00:
Trammell alleges, and this is I think paragraph 29, that malic acid changed the ratio between sugar and acid of a characterizing fruit flavor, which he concedes was imparted by natural strawberry or raspberry flavoring ingredients.

[00:22:55] Speaker 00:
He says, changed the ratio between sugar and acid.

[00:22:59] Speaker 00:
So those are, and then goes on to conclude that the malic acid reinforces, simulates, and creates the products characterizing strawberry and raspberry flavors.

[00:23:09] Speaker 00:
I mean, there's no dispute that the characterizing flavor of this product is strawberry and raspberry.

[00:23:15] Speaker 00:
In the judicial, in the, the court took judicial notice of the labels here.

[00:23:19] Speaker 00:
And on the labels themselves, there's the ingredient list on the back side.

[00:23:25] Speaker 00:
This is not a question of whether you can go to the ingredient list or not under Ninth Circuit precedent.

[00:23:31] Speaker 00:
This is not talking about the reasonable consumer standard.

[00:23:34] Speaker 00:
I'm just saying the court can take that into account because it's the label.

[00:23:39] Speaker 00:
And on the label, in the ingredient list, it says natural flavor and malic acid as two separate ingredients.

[00:23:49] Speaker 04:
Now, what we are arguing is that... Could it also mean that malic acid is not a natural flavor?

[00:24:02] Speaker 00:
That malic acid is not a natural...

[00:24:05] Speaker 00:
flavor.

[00:24:07] Speaker 04:
Your argument was that because natural flavor is listed in the ingredients list, you've got palm oil and then malic acid is listed.

[00:24:15] Speaker 04:
Your argument was that it means it's not a flavor, but what I'm saying is it could also mean that it's not a natural flavor, that it's an artificial flavor.

[00:24:23] Speaker 00:
I suppose it could mean that, but it could also mean that the malic acid is there and it serves a function that's different than a flavor because you have natural flavor, and that's consistent with the front label, which we've talked about the labeling here, the front label of the product that says natural strawberry and raspberry flavored licorice right there in big letters on the front label.

[00:24:46] Speaker 00:
And so what we're saying here is that if you look at the definition,

[00:24:52] Speaker 00:
of flavoring agent versus flavoring enhancer.

[00:24:55] Speaker 00:
And you look at the allegations of the First Amendment complaint, the factual allegations, not the punchline that simply takes the definition of flavoring agent and puts it into a paragraph, but rather the factual allegations.

[00:25:14] Speaker 00:
There's no doubt that you have natural flavor

[00:25:17] Speaker 00:
that's listed in the ingredient list that's giving this product its characterizing strawberry and raspberry flavor.

[00:25:24] Speaker 00:
It has to be somewhere, and under FDA regulations, if you're using like a natural strawberry flavor or raspberry flavor, you can just put natural flavor in the ingredient list.

[00:25:35] Speaker 00:
You don't have to list it all out.

[00:25:37] Speaker 00:
And the malic acid takes that original characterizing flavor, that original taste, that characterizing flavor, and it adjusts it.

[00:25:47] Speaker 00:
it adjusted because it gives it a tartness.

[00:25:50] Speaker 00:
I think common sense would dictate malic acid itself doesn't have a taste.

[00:25:55] Speaker 00:
It has a tartness to it, but it doesn't really have a taste or aroma.

[00:25:59] Speaker 00:
It certainly would not, on its own, give this liquorice its strawberry or raspberry

[00:26:07] Speaker 00:
Flavors that has to come from somewhere and it comes from the natural flavor with the malic acid does it adjust for the allegations of the complaint that Original taste that characterizing flavor.

[00:26:21] Speaker 02:
All right.

[00:26:21] Speaker 02:
Thank you council.

[00:26:22] Speaker 02:
You're over your time.

[00:26:23] Speaker 00:
Thank you

[00:26:32] Speaker 01:
Couple brief points, please.

[00:26:34] Speaker 01:
Everything my colleague raised is a factual dispute.

[00:26:38] Speaker 01:
And in terms of the factual issue on the malic acid, instead of reading dozens of cases into the record, nearly every court in this district has decided this is a factual issue that cannot be resolved on a motion to dismiss.

[00:26:55] Speaker 01:
I refer you to footnote four of the appellant's reply brief.

[00:27:03] Speaker 03:
Council, let me get clarification from you.

[00:27:05] Speaker 03:
What do you mean this issue?

[00:27:06] Speaker 03:
Whether it's a flavor agent or a flavor enhancer, or what is the factual issue?

[00:27:11] Speaker 01:
The factual issue of whether the malic acid is a flavor or a flavor enhancer cannot be resolved on a motion to dismiss.

[00:27:19] Speaker 01:
If there's competing inferences, it's resolved in favor of the plaintiff.

[00:27:24] Speaker 01:
And that was articulated as recently as last year before this court in the case of shy beefy prosops.

[00:27:31] Speaker 01:
Also,

[00:27:32] Speaker 01:
Under Singleton v. Wolf this court may not make factual findings that the district court has not made and Once again, there's been no exceptions to that that have been discussed that would apply At the pleading stage the allegations must be accepted as true and cannot be resolved on a motion to dismiss and

[00:27:58] Speaker 01:
For these reasons, we ask the court to please reverse the judgment.

[00:28:03] Speaker 02:
Thank you.