[00:00:01] Speaker 01:
Okay, I thank counsel for their patience.

[00:00:03] Speaker 01:
The court welcomes a group of students who are observing the second argument.

[00:00:06] Speaker 01:
The case is Hussain versus Campbell Soup Company, case 24-6041.

[00:00:11] Speaker 01:
Counsel, good morning.

[00:00:13] Speaker 03:
Good morning.

[00:00:14] Speaker 03:
My name is James Pazos.

[00:00:16] Speaker 03:
I represent the appellant, Syed Hussain, and I'd like to reserve five minutes, please.

[00:00:22] Speaker 04:
Sure.

[00:00:24] Speaker 03:
At some point, the district court

[00:00:26] Speaker 03:
ordered that potatoes be sent to chambers, and I was going to bring those potato chips here for each of you, but then I decided I didn't really know the laws against gifts, so I decided against it, but I was thinking about you guys.

[00:00:41] Speaker 01:
Since it's the Friday at the end of the calendar, we could have probably used the snack, but go ahead.

[00:00:48] Speaker 03:
This is a 12b6 motion regarding deceptive labeling.

[00:00:52] Speaker 03:
As you know, the same principles, basic principles apply.

[00:00:56] Speaker 03:
whether a package is deceptive is typically an issue of fact and is typically not appropriate at the pleading stage.

[00:01:06] Speaker 03:
However, if the advertising itself makes it impossible for plaintiff to prove that the packaging is deceptive, then dismissal is appropriate.

[00:01:20] Speaker 03:
And that decision is made by

[00:01:23] Speaker 03:
the judge using his experience or her experience and common sense.

[00:01:28] Speaker 03:
And it's interesting, because that's the critical point.

[00:01:31] Speaker 03:
When a judge makes that decision of dismissal, that common sense has to be common.

[00:01:37] Speaker 03:
And the other rule is that the factual allegations are deemed true, and they're construed in favor of the plaintiff, nonmoving court.

[00:01:47] Speaker 02:
Counsel, can I interrupt?

[00:01:48] Speaker 02:
One question I have.

[00:01:50] Speaker 02:
Why are you arguing that the front of the package is not simply ambiguous, but instead plausibly misleading?

[00:01:59] Speaker 02:
How is it that you're arguing that?

[00:02:02] Speaker 02:
How is the argument that the front label is plausibly misleading?

[00:02:07] Speaker 02:
Correct.

[00:02:08] Speaker 02:
And not just ambiguous, therefore requiring us to turn the package around.

[00:02:13] Speaker 03:
Correct.

[00:02:14] Speaker 03:
Yes.

[00:02:14] Speaker 03:
And we believe that's true.

[00:02:17] Speaker 03:
In our central, the plaintiff's central allegation and claim in the case is that the air-fried method of preparation, it means by definition it's not deep-fried in oil.

[00:02:31] Speaker 03:
So when it says air-fried, that's a representation that it's not deep-fried in oil.

[00:02:36] Speaker 01:
Is that plausible?

[00:02:37] Speaker 01:
I mean, it says air-fried, kettle-cooked, air-finished.

[00:02:40] Speaker 01:
So, I mean, in the back obviously then clarifies there's two steps to the manufacturing process.

[00:02:47] Speaker 03:
That's correct.

[00:02:48] Speaker 03:
And that's where we disagree with the district court when the district court gripped on to the phrase kettle cooked and said, well, that's deep fried in oil, so game over.

[00:03:00] Speaker 03:
We don't believe that that necessarily a reasonable consumer would conclude that if you accept the premise that the method in which air fried uses is little or no oil.

[00:03:11] Speaker 03:
And we allege the definition from dictionary.com, which we believe is

[00:03:17] Speaker 03:
in accordance with what a reasonable consumer would view.

[00:03:20] Speaker 01:
What about the back though that has like a vat of something and it's potato chips so most people would probably think it's oil, right?

[00:03:29] Speaker 03:
And that's the point really what the justice is bringing up.

[00:03:34] Speaker 03:
You don't even get to the back if there's a plausible ambiguity based on the front label.

[00:03:40] Speaker 03:
If the front label is plausibly misleading to consumers, the court typically does not consider the back label

[00:03:47] Speaker 03:
at the pleading stage.

[00:03:48] Speaker 03:
That's for refining something.

[00:03:49] Speaker 02:
Let's say that we do get to the back.

[00:03:52] Speaker 02:
What about Judge Press's question?

[00:03:54] Speaker 02:
There is a liquid going into a kettle.

[00:03:57] Speaker 02:
Why would a reasonable consumer believe that that's water versus oil, I guess?

[00:04:06] Speaker 03:
Well, and that's kind of our central claim.

[00:04:09] Speaker 03:
If air fried really means little or no oil,

[00:04:14] Speaker 03:
and not deep fried, how could you construe kettle cooked or anything on this package that says it's deep fried?

[00:04:23] Speaker 03:
So the reasonable consumer has to interpret whatever other language is below it consistent with the interpretation of this product as air fried.

[00:04:33] Speaker 03:
And so how do I prove that at the pleading stage?

[00:04:35] Speaker 03:
It's difficult.

[00:04:37] Speaker 03:
This is why we actually included in the brief something I wouldn't typically do.

[00:04:42] Speaker 03:
but we're kind of backed against the wall of the YouTuber who's doing a product review of this product.

[00:04:48] Speaker 03:
And this is not someone who's walking by, sees a bag of chips in the store and says, air-fried?

[00:04:54] Speaker 03:
Oh, not deep-fried.

[00:04:55] Speaker 03:
That must be better.

[00:04:57] Speaker 03:
I don't want deep-fried and grabs it.

[00:04:59] Speaker 03:
Here's a consumer that's actually doing a product review, looking at this product from top to bottom.

[00:05:07] Speaker 03:
And he sees all this.

[00:05:09] Speaker 03:
He sees the front.

[00:05:10] Speaker 03:
He sees the back label.

[00:05:11] Speaker 03:
And he says, wow, does that mean it's boiled or is it fried?

[00:05:17] Speaker 03:
And he tells the audience, somebody tell me what's going on here.

[00:05:21] Speaker 03:
That's after someone scrutinizing this label.

[00:05:25] Speaker 03:
And as the white side talks about, this isn't a product that's necessarily going to be scrutinized.

[00:05:31] Speaker 03:
It's not a specialty product, really.

[00:05:33] Speaker 03:
They're potato chips.

[00:05:35] Speaker 03:
So I think that that makes the point that it is at least plausible

[00:05:41] Speaker 03:
for a consumer when it sees air fried, and that means it's not deep fried in oil, and sees kettle cooked, that there's another interpretation.

[00:05:52] Speaker 03:
Whether that's boiled, whether that's steamed, whether there's a kettle process that uses air fried, maybe that's not clear, but what they still are going to interpret is this product is not deep fried.

[00:06:07] Speaker 03:
Otherwise, it makes no sense.

[00:06:10] Speaker 03:
That's like saying you have a representation that says it's not deep-fried, and underneath it says it's deep-fried in oil.

[00:06:17] Speaker 01:
I thought the allegation was essentially oil-free and therefore healthier, but the ingredient list does list oil.

[00:06:25] Speaker 03:
The point is not that it doesn't have oil.

[00:06:29] Speaker 03:
The gravamen of our allegation, and it's in paragraph 7 and it's in paragraph 27, is that it's not deep-fried in oil.

[00:06:40] Speaker 03:
Air frying can use either no oil.

[00:06:43] Speaker 03:
But it's kettle cooked, right?

[00:06:45] Speaker 03:
That's what it says.

[00:06:45] Speaker 03:
That's what it says.

[00:06:47] Speaker 03:
And the question is, does kettle cook categorically mean deep fried in oil?

[00:06:53] Speaker 03:
And we maintain it does not.

[00:06:55] Speaker 03:
The YouTuber, all we can do is get evidence, but we don't have the opportunity to get evidence.

[00:07:00] Speaker 03:
So we presented this YouTuber.

[00:07:04] Speaker 03:
He didn't see it as kettle cooked deep fried.

[00:07:08] Speaker 03:
My client didn't see it like that.

[00:07:09] Speaker 03:
So we want an opportunity to at least gather evidence.

[00:07:13] Speaker 03:
And it's all anecdotal at this point, because I'm arguing against common sense at the pleading stage.

[00:07:19] Speaker 03:
But I asked many young people, including my daughter, who's 18, and I asked, what do you think about this?

[00:07:27] Speaker 03:
Kettle cooked chips, what is that?

[00:07:29] Speaker 03:
And they said, kettle?

[00:07:32] Speaker 03:
Like a tea kettle, so it's steamed.

[00:07:36] Speaker 03:
It's different generations.

[00:07:37] Speaker 03:
I think of it differently.

[00:07:39] Speaker 03:
I know I'm old enough to remember ma and pa kettle with the kettle.

[00:07:43] Speaker 03:
But that's not necessarily the target consumer here.

[00:07:49] Speaker 03:
And I think this YouTuber shows that.

[00:07:51] Speaker 03:
And I think that when a consumer is walking the aisle and says, air fried, and sees something that says, vaguely, kettle cooked and air finished, they're going to interpret that consistent, well, it's air fried.

[00:08:06] Speaker 03:
And you can see that in the YouTuber video, too.

[00:08:09] Speaker 03:
It's comical.

[00:08:10] Speaker 03:
At the beginning, he looks at the front of the label, and he says, Kettle Brand, Air Fried, and then it was Himalaya Chips was the name.

[00:08:21] Speaker 03:
He skips over the second part, Kettle Cooked and Air Finished, and he repeats, Air Fried, Air Fried, Air Fried.

[00:08:29] Speaker 03:
And you have a picture in the grocery store.

[00:08:31] Speaker 03:
of this product that the grocery store doesn't say kettle cooked and air finished.

[00:08:36] Speaker 03:
It says air fried.

[00:08:38] Speaker 03:
That's the impression that's given and left.

[00:08:41] Speaker 03:
And the question is, can I allege that, plausibly allege that a consumer is going to look at kettle cooked and say I'm going to interpret that consistent with not deep fried so it must be boiled, must be steamed.

[00:08:56] Speaker 03:
It could even be a marketing jingle.

[00:08:58] Speaker 03:
We put that in there.

[00:09:00] Speaker 03:
Even the district court actually, in reading back, it was kind of humorous.

[00:09:06] Speaker 03:
When he's doing his analysis, he sees kettle brand at the top.

[00:09:10] Speaker 03:
And he says, well, that just tells you right there there's a kettle involved.

[00:09:14] Speaker 03:
Well, it really doesn't, because kettle brands actually sells baked chips that are not cooked in a kettle.

[00:09:21] Speaker 03:
They're not deep fried.

[00:09:25] Speaker 01:
So here there is in the back a picture of what looks like a kettle.

[00:09:30] Speaker 03:
It looks like a kettle.

[00:09:31] Speaker 03:
And do they cook it in those types of kettles?

[00:09:34] Speaker 03:
No.

[00:09:35] Speaker 03:
Does anyone think that they cook it in those type of kettles?

[00:09:38] Speaker 03:
No.

[00:09:39] Speaker 03:
So if you get to the back page, it still doesn't really clarify how that's being cooked.

[00:09:47] Speaker 03:
And you have to ask yourself, if it's so clear that it's cooked in oil, why don't they say, kettle cooked in oil, deep fried in oil?

[00:09:56] Speaker 03:
precisely because they don't want that out.

[00:09:59] Speaker 03:
They want to try to conceal that point because it makes the product less attractive.

[00:10:05] Speaker 03:
And I mean, I think that that's our position.

[00:10:09] Speaker 03:
And there's nothing in the back that says deep fried in oil, doesn't say it anywhere.

[00:10:15] Speaker 03:
And as long as if the front label is deceptive, you don't even get to the back label.

[00:10:23] Speaker 00:
So how do you deal with the 30% less fat?

[00:10:26] Speaker 00:
Obviously, they were saying there's fat, and it's 30% less on our irrigator chips.

[00:10:33] Speaker 00:
It's disclosing that there's some fat.

[00:10:35] Speaker 00:
True?

[00:10:36] Speaker 03:
It does disclose that there's 30% less fat.

[00:10:39] Speaker 03:
That is correct.

[00:10:42] Speaker 01:
So where is the fat coming from, if not oil?

[00:10:47] Speaker 03:
To be honest, I don't even know.

[00:10:50] Speaker 03:
I don't know.

[00:10:52] Speaker 03:
If I was buying these chips, I don't think I'd have that level of analysis.

[00:10:57] Speaker 03:
I don't think my clients did.

[00:10:58] Speaker 01:
I was just assuming you had a garage full of these chips.

[00:11:02] Speaker 00:
Oh, you've got potatoes.

[00:11:03] Speaker 00:
There's just not the chips.

[00:11:05] Speaker 03:
Well, I got to tuck myself in here.

[00:11:09] Speaker 03:
I understand the court's position.

[00:11:10] Speaker 03:
And if we have, you know, this is the white side made the point that, you know, these products are not highly scrutinized, like Manuka honey, for example, which is a specialty product.

[00:11:22] Speaker 03:
So it's very unlikely that a consumer is going to put the amount of analysis that we're putting in here on what's on this label.

[00:11:31] Speaker 03:
And even a consumer that was doing a review didn't put that much analysis, and he spent like 20 minutes on the label.

[00:11:38] Speaker 03:
We're really talking about a product that they come by and grab, and they say, air fry, good.

[00:11:43] Speaker 03:
That's not deep fry.

[00:11:44] Speaker 03:
That's better.

[00:11:45] Speaker 03:
They have baked chips.

[00:11:46] Speaker 03:
The consumers are already prepared for this, because we have baked chips.

[00:11:51] Speaker 03:
Baked chips.

[00:11:53] Speaker 03:
are not deep-fried.

[00:11:55] Speaker 03:
They're healthier.

[00:11:56] Speaker 03:
They have less fat.

[00:11:59] Speaker 00:
I don't know where the fat comes from in baked chips either, but... Well, I think, basically, whether you bake them or air-fry them, you use some oil.

[00:12:07] Speaker 00:
I mean, I've not heard of anything that just straight-out bakes it without oil or air-fries it without oil.

[00:12:14] Speaker 00:
And if you... Less oil, I'll grant you.

[00:12:16] Speaker 00:
I'm sorry.

[00:12:17] Speaker 00:
Well, I said less oil, I'll grant you.

[00:12:19] Speaker 03:
Yes, and that's the definition of air fried, little or no oil.

[00:12:22] Speaker 03:
So there's a little oil that comes within the definition.

[00:12:27] Speaker 03:
Really, the question is whether it's deep fried in a vat of oil.

[00:12:30] Speaker 01:
Did you want to save some time for a bottle?

[00:12:32] Speaker 01:
I do, and yes.

[00:12:34] Speaker 01:
Thank you.

[00:12:34] Speaker 01:
Thank you.

[00:12:44] Speaker 04:
Dale Gialli for the Campbell's Company.

[00:12:46] Speaker 04:
May it please the court?

[00:12:49] Speaker 04:
The court should affirm dismissal, and there are numerous paths to do so based on this court's terrific set of decisions that walk both the court and litigants through those factors that a court should use to assess the plausibility of label false advertising on consumer packaged goods.

[00:13:11] Speaker 04:
And when we go through those cases, most of which are very recent,

[00:13:16] Speaker 04:
and walk through this label, we see that there's multiple, multiple ways in which the allegations of deception are found to be implausible.

[00:13:28] Speaker 02:
Council, just to be clear, we have to look at this from a reasonable consumer standard, correct?

[00:13:34] Speaker 02:
That's correct.

[00:13:35] Speaker 02:
And when we do, and we're looking at just the front label, blazoned across the front of this

[00:13:42] Speaker 02:
Bag of chips is the the the words air-fried and it's it's in very it's very prominent It's very big.

[00:13:51] Speaker 02:
In fact, it is it is the selling point of these chips.

[00:13:54] Speaker 02:
Wouldn't you agree?

[00:13:58] Speaker 04:
Well You honor I think the kettle brand the fact that it is a kettle potato chip that it is air-fried Kettle cooked air-finished sea salt vinegar

[00:14:11] Speaker 02:
Right, but that's not how it's presented to the consumer.

[00:14:16] Speaker 02:
How it's presented to the consumer is in huge letters, blazoned across the front of this package.

[00:14:22] Speaker 02:
It says, air fried.

[00:14:23] Speaker 02:
It's almost as big as, I think, the kettle, the label.

[00:14:31] Speaker 02:
Would you agree that that's the next sort of biggest lettering across the front of the packaging?

[00:14:36] Speaker 02:
Yes.

[00:14:38] Speaker 02:
Why wouldn't that be misleading to a consumer?

[00:14:43] Speaker 02:
Just any person grabbing a bag of chips, just looking at this package, just nothing else, looking at the package, being air-fried.

[00:14:52] Speaker 02:
How would they know that, in fact, it's not also cooked in a vat of oil?

[00:14:59] Speaker 04:
Sure.

[00:15:00] Speaker 04:
As far as the prominence, Your Honor, I think the recent case in Whiteside answers that question.

[00:15:06] Speaker 04:
In Whiteside, the products were

[00:15:08] Speaker 04:
labeled as plant-based wipes, and the statement that indicated 70% plus plant-based materials, I think, was what you might call mouse print miniscule.

[00:15:23] Speaker 04:
So the relative size is interesting, and the reason that that size is important is very prominently on this package, in large language and in the same text box,

[00:15:38] Speaker 04:
the same font color is the statement kettle cooked, air finished.

[00:15:43] Speaker 02:
Well, it's not exactly right.

[00:15:45] Speaker 02:
It's not the same thickness.

[00:15:48] Speaker 02:
It's lighter in its prominence, wouldn't you agree?

[00:15:53] Speaker 04:
Well, it's not lighter in its font color.

[00:15:55] Speaker 04:
It's the exact same font color.

[00:15:56] Speaker 04:
Prominence, absolutely.

[00:15:57] Speaker 04:
It is a smaller font.

[00:15:59] Speaker 04:
It looks to me to be about half the size of the font, but it is still in that text box.

[00:16:03] Speaker 04:
My point about bringing up Whiteside is the label statement on Whiteside that brought that label into the ambiguity that a consumer would need additional information in order to make a conclusion as to the thing that the consumer believes was deceptive, much smaller in Whiteside.

[00:16:23] Speaker 04:
And the court indicates that's plenty

[00:16:26] Speaker 02:
plenty for the for the consumer to have seen or or whatnot to Dispel ambiguity or to raise questions in the consumers mind so there's no question you're thinking your argument is that in the the The the way it looks it's very clear that It is clear to the consumer that it is cooked in a vat of oil

[00:16:54] Speaker 02:
is what you're saying, by looking at this front of the ships, they are cooked in Nevada oil.

[00:17:00] Speaker 02:
That's what a consumer is going to see from the front of this package.

[00:17:04] Speaker 04:
Okay.

[00:17:04] Speaker 04:
I think that is accurate, but that's not what I'm arguing, Your Honor, because I don't know that that's the standard under which these deceptive claims are assessed.

[00:17:14] Speaker 04:
The way that deceptive claims are assessed is would the reasonable consumer need additional information before they made a conclusion that

[00:17:24] Speaker 04:
plaintiff made here that this is not cooked in oil.

[00:17:28] Speaker 04:
That's what plaintiff's assertion is in this case.

[00:17:32] Speaker 04:
And there's simply no way that based on what the front of PAC says here that the reasonable consumer would come to that conclusion.

[00:17:39] Speaker 04:
And so what the case law teaches is if the reasonable consumer needs additional information, which as I'm saying is the case, now the defendant has the ability to bring to the court's attention all parts of the

[00:17:54] Speaker 04:
in order to show that this consumer needed more information, here's the more information that consumer would have seen.

[00:18:01] Speaker 02:
And I take your point that they would have to then turn to the back of the package.

[00:18:08] Speaker 02:
I take your point as to that.

[00:18:10] Speaker 02:
But then the back of the package is supposed to clearly resolve the ambiguity.

[00:18:15] Speaker 02:
So explain to me then how the back of the package

[00:18:18] Speaker 02:
clearly resolves the ambiguity if there's some liquid pouring into a kettle, and it doesn't say that it's being fried in oil.

[00:18:29] Speaker 04:
Sure, Your Honor.

[00:18:31] Speaker 04:
I'm going to answer the question, but I do want to make a point that I don't think it's my obligation to show that the BAC clearly resolves the error, but I'll get to that second.

[00:18:39] Speaker 04:
So right off the bat, the back of the BAC, and this is ER 018, the back of the BAC says how do we make

[00:18:47] Speaker 04:
are air-fried chips and then it goes through and first it says we batch cook them.

[00:18:53] Speaker 04:
Batch cook is another statement that means kettle cooked.

[00:18:59] Speaker 04:
Batch cook is known in the industry as batching potato chips in oil.

[00:19:06] Speaker 04:
It also says cook them in kettles.

[00:19:09] Speaker 04:
It has the picture of course as the court is other.

[00:19:11] Speaker 00:
Do you really cook them in kettles?

[00:19:12] Speaker 00:
I'm sorry?

[00:19:13] Speaker 00:
Do you really cook them in kettles or do you cook them in vats?

[00:19:17] Speaker 04:
They're cooked in a larger, more industrial thing, which by the way, plaintiff knows because he brought that to the district court's attention in a video exactly how kettle chips are made.

[00:19:26] Speaker 04:
So the plaintiff is not challenging.

[00:19:28] Speaker 00:
They aren't cooked in those little cute vats.

[00:19:30] Speaker 04:
They're not, Your Honor.

[00:19:32] Speaker 04:
And plaintiff has made it clear that is not part of his deception theory.

[00:19:36] Speaker 04:
Yeah, I understand.

[00:19:37] Speaker 04:
We're just curious.

[00:19:39] Speaker 04:
We batch cook them in kettles.

[00:19:41] Speaker 04:
So both batch cooking and kettle cooking are known

[00:19:48] Speaker 02:
to the reasonable consumer?

[00:19:50] Speaker 04:
Absolutely.

[00:19:51] Speaker 04:
And that is what Moore teaches us.

[00:19:52] Speaker 04:
Moore versus Trader Joe's.

[00:19:54] Speaker 04:
Your Honor, we cited a case that indicates that kettle cooking is a generic phrase that now certainly it was in the intellectual property

[00:20:10] Speaker 04:
Space but the court went through and indicated that kettle cooking batch cooking is now a generically understood commonly understood notion of how these chips are cooked so much so that Intellectual property could not be awarded as to that phrase I don't know I don't know counsel, but you know I'm a cook I'm and the person goes to the store and

[00:20:38] Speaker 02:
is going to look at this and see the pretty little cattle and they're going to make decisions about whether the picture there in the back looks like oil or not.

[00:20:54] Speaker 02:
You don't cook with oil.

[00:20:56] Speaker 02:
You fry with oil.

[00:20:58] Speaker 02:
You cook, perhaps you boil some things in a kettle, but to say that that establishes, that clarifies the ambiguity that was in the front, I'm not so sure that that is happening here.

[00:21:15] Speaker 04:
There's more, but there's more, Your Honor.

[00:21:17] Speaker 04:
First off, there's the spattering.

[00:21:19] Speaker 04:
coming out of the kettle.

[00:21:20] Speaker 04:
It's not just liquid.

[00:21:21] Speaker 04:
It's spattering liquid, which certainly indicates that there is a hot boiling going on here of some sort of oil that is spattering.

[00:21:29] Speaker 04:
Second, the ingredient list lists oil.

[00:21:32] Speaker 04:
This is all on the back.

[00:21:34] Speaker 04:
But third, Your Honor, the nutrition facts lists the fat content of this product.

[00:21:40] Speaker 04:
And total grams of fat, at least at

[00:21:44] Speaker 04:
ERO 18 that particular product is six grams eight percent of your daily value of fat is coming from one serving of these chips I Would like to go back to the front your honor the court did note, and I think it's important It's not just that this says kettle cooked air finish.

[00:22:00] Speaker 04:
It's not just that the word kettle is the largest Word on the entire front panel, and this is a potato chip But it says 30% less fat 30% less fat

[00:22:13] Speaker 04:
Also, of course, means it's got 70% of the fat of a normal chip.

[00:22:19] Speaker 04:
Any person, the reasonable consumer purchasing this product would understand, and we cite Moore versus Trader Joe's for that, and also other decisions where the reasonable consumer brings to the purchasing decision those things that the reasonable consumer knows.

[00:22:36] Speaker 04:
A reasonable consumer knows potatoes do not add fat to food.

[00:22:41] Speaker 04:
Oil adds the fat to the food.

[00:22:43] Speaker 04:
So if this product has 70% of the fat of a normal chip, obviously it's got oil in it.

[00:22:51] Speaker 04:
And of course, the ingredient list and the nutrition facts prove that out by showing that it has both oil.

[00:22:58] Speaker 02:
So the normal consumer is not going to start doing addition or subtraction or calculations in their head.

[00:23:05] Speaker 02:
When they see that, they're going to see what

[00:23:08] Speaker 02:
what the front of the package is, blazoned across the front saying, air fried.

[00:23:13] Speaker 02:
And then in the back, there's a cute little kettle, and somehow that's supposed to convey that it's a vat of oil, even though it doesn't say that.

[00:23:25] Speaker 02:
Why didn't you just say that?

[00:23:26] Speaker 02:
You could say, cooked and fried in oil.

[00:23:30] Speaker 02:
Well, I don't know that there's... My point is, is not putting that

[00:23:36] Speaker 02:
go towards the intent to, frankly, deceive the consumer?

[00:23:45] Speaker 04:
No, not at all.

[00:23:45] Speaker 04:
This is a product that is different than the regular product.

[00:23:49] Speaker 04:
This has an air frying step to it, and that air frying step provides 30% less fat.

[00:23:57] Speaker 04:
All of that is right on the front.

[00:24:00] Speaker 04:
For any consumer to see, no math needed to see that,

[00:24:04] Speaker 04:
But it's quite clear from the front that this is not a manufacturing process that has one step.

[00:24:11] Speaker 04:
It has kettle cooked, air fried.

[00:24:16] Speaker 04:
And then that would lead to a question about how this product is manufactured.

[00:24:22] Speaker 04:
And then the back makes it quite clear there is two steps to it.

[00:24:26] Speaker 04:
The first is batch cooked in a kettle with some sort of liquid that's spattering.

[00:24:31] Speaker 04:
And then it is air-finished.

[00:24:35] Speaker 04:
Then it's air-fried, as the back says.

[00:24:38] Speaker 04:
So we batch cook them in kettles.

[00:24:41] Speaker 04:
Then, the word then is right there that obviously connotes that it's second to that and that it is actually a separate standalone step.

[00:24:49] Speaker 04:
Then air-fry them for the light crispy crunch together with the ingredient list.

[00:25:05] Speaker 04:
My esteemed opposing counsel had mentioned multiple times a YouTuber.

[00:25:11] Speaker 04:
And I don't know if the court has had the opportunity to review the YouTuber he's referring to, but it's at page seven of his reply brief.

[00:25:16] Speaker 04:
He cites the YouTuber.

[00:25:18] Speaker 04:
The YouTuber proves the Campbell Company's point.

[00:25:22] Speaker 04:
The YouTuber looks at the label and looks at the front of the package, and what does he do?

[00:25:27] Speaker 04:
He asks the question, what does this mean?

[00:25:29] Speaker 04:
He fits exactly into Whiteside and McGinnity.

[00:25:34] Speaker 04:
i.e., that this is a label I need further information for.

[00:25:40] Speaker 04:
That YouTuber doesn't support plaintiff.

[00:25:42] Speaker 04:
He supports defendant.

[00:25:44] Speaker 04:
And by the end of the video, he seems to conclude to himself, well, it's a two-step process.

[00:25:52] Speaker 04:
And it's a two-step process.

[00:25:53] Speaker 04:
And he's actually excited about it, because he thinks a chip that's been double-cooked is going to be even better than a chip that's been single-cooked.

[00:26:01] Speaker 04:
But the whole point of that YouTuber video, as I viewed it,

[00:26:05] Speaker 04:
is entirely in line with that these are not plausible allegations of deception because that YouTuber clearly had questions about what this front label meant, and by the time he's done, he indicates, oh, it's a two-step process.

[00:26:20] Speaker 04:
To Judge Mendoza's point, how do we know that first step has to do with oil?

[00:26:25] Speaker 04:
Because kettle, chips, kettle, cooked, batch, cooking.

[00:26:30] Speaker 04:
is all about this concept of fried in oil.

[00:26:36] Speaker 04:
That is what batch cooking and kettle cooking, how that's defined and how it's commonly understood.

[00:26:44] Speaker 02:
Defined by whom, counsel?

[00:26:46] Speaker 02:
Because when you look at the dictionary, you boil water in kettles.

[00:26:55] Speaker 02:
I guess defined by whom is what your question is.

[00:26:59] Speaker 04:
We cited the classic foods versus kettle foods case, that's at 468F sub-second 1181.

[00:27:07] Speaker 04:
And right there, the court said the kettle cooking process involves potato slices being fed directly into a vat of hot oil.

[00:27:16] Speaker 04:
That was a factual finding that the district court made along, and he did that because he heard from industry experts as to what kettle cooking is.

[00:27:28] Speaker 04:
And many industry experts came in and said, this is now a generic phrase.

[00:27:33] Speaker 04:
People just understand how kettle cooking operates and works.

[00:27:37] Speaker 02:
Council, I think I just may disagree with you on that.

[00:27:41] Speaker 02:
When I think of a kettle, I think of those old Westerns where you have a kettle burning over a fire.

[00:27:47] Speaker 02:
They're wonderful.

[00:27:51] Speaker 02:
One of my favorite movies.

[00:27:53] Speaker 02:
But they're usually cooking a stew

[00:27:56] Speaker 02:
something they're not frying some chips.

[00:28:00] Speaker 02:
They're cooking something like a meal that's not being fried and things.

[00:28:06] Speaker 02:
So I don't know.

[00:28:06] Speaker 02:
I guess maybe that's just my understanding of a kettle.

[00:28:11] Speaker 04:
And that's understood.

[00:28:12] Speaker 04:
Of course, we're looking at the reasonable consumer.

[00:28:14] Speaker 04:
And I think the record that is developed in the classic foods case is of the generic general populace.

[00:28:22] Speaker 04:
With respect to kettle cooking as opposed to any individual given person and what they might think cooking cooking with a kettle means But it does squarely address whether or not Consumers understand the concept of kettle cooking and batch cooking Taking you a little over your time, but let me see if there's further questions.

[00:28:44] Speaker ?:
I

[00:28:47] Speaker 01:
I assume you keep a lot of these chips in your garage as well.

[00:28:50] Speaker 01:
Thank you, Council.

[00:28:50] Speaker 01:
They're delicious, Your Honor.

[00:28:52] Speaker 01:
Thank you very much.

[00:28:53] Speaker 01:
Let's hear a rebuttal.

[00:28:59] Speaker 03:
Thank you, Your Honors.

[00:29:04] Speaker 03:
Let me talk about batch cooking.

[00:29:08] Speaker 03:
Council said something that's very interesting.

[00:29:09] Speaker 03:
Batch cooking is known in the industry.

[00:29:12] Speaker 03:
But we're not talking about the industry.

[00:29:14] Speaker 03:
We're talking about reasonable consumers.

[00:29:16] Speaker 03:
And if you read the case cited by counsel about the generic process, that that's a generic process of kettle cooking, that was in the context of a brand dispute, whether kettle brand was a generic term or whether it was a branding term.

[00:29:33] Speaker 03:
That had nothing to do with what we're talking about here.

[00:29:35] Speaker 03:
That was a dispute regarding brand.

[00:29:41] Speaker 03:
Council also said something very interesting and talked about how if you need additional information to clarify something, you go to the back page.

[00:29:48] Speaker 03:
But if you don't need additional information, you don't go to the back page.

[00:29:53] Speaker 03:
And in fact, that's what Whiteside talks about.

[00:29:55] Speaker 03:
And in Whiteside, Council brought it up, the issue was on the front label, nature care, plant-based, and the district court

[00:30:06] Speaker 03:
sustained or granted the motion and the appellate court reversed.

[00:30:11] Speaker 03:
And the district court's view of that plant-based was that, well, it doesn't say it's wholly based on plants, it just says plant-based.

[00:30:21] Speaker 03:
And the Whiteside Court said, well, as long as there's an interpretation that the reasonable consumer would say, okay, that's consistent, it sounds like it's plant-based, it sounds like it's natural care, and that's a deceptive statement.

[00:30:36] Speaker 03:
You don't even go to the back.

[00:30:38] Speaker 03:
And I would submit that this case is more egregious than Whiteside.

[00:30:43] Speaker 03:
And precisely because the statement, air-fried, is a complete misstatement.

[00:30:52] Speaker 03:
It's not air-fried.

[00:30:55] Speaker 00:
But I think if you go down to kettle-cooked, air-finished, it's a two-step process that's communicated on the front label, wouldn't you say?

[00:31:03] Speaker 03:
And you can say that that's a two-step process.

[00:31:07] Speaker 03:
The real question though is, is one of those steps deep fried in oil?

[00:31:12] Speaker 03:
That's really our point.

[00:31:14] Speaker 03:
Is one of those steps deep fried in oil?

[00:31:16] Speaker 03:
It doesn't say deep fried in oil.

[00:31:18] Speaker 03:
It says kettle cooked, cooked in a kettle.

[00:31:21] Speaker 03:
And there's reasonable interpretation from a consumer that that is not deep fried in oil.

[00:31:26] Speaker 03:
And in fact, that's the only logical interpretation, and that's why it's different than Whiteside.

[00:31:31] Speaker 03:
It's the only logical interpretation because the statement above says not deep fried in oil.

[00:31:37] Speaker 03:
And the consumer, even if they look at it for a minute or two, they have to reconcile that.

[00:31:44] Speaker 03:
And they're going to reconcile that in a way that's consistent with air fried, which is the predominant representation.

[00:31:51] Speaker 03:
And I just want to point out this issue about, council mentioned the YouTuber.

[00:31:58] Speaker 03:
And I encourage the court to look at that video.

[00:32:01] Speaker 03:
Because he didn't look at the front and say, oh, I'm confused.

[00:32:06] Speaker 03:
I need to look at the back.

[00:32:08] Speaker 03:
He looked at the front and he was convinced it's air fried.

[00:32:10] Speaker 03:
He looked at the back and then said, hmm, is this boiled or is this fried?

[00:32:18] Speaker 03:
I'm not sure about that.

[00:32:20] Speaker 03:
So the front label didn't cause any confusion or ambiguity.

[00:32:24] Speaker 03:
He was convinced it was air fried.

[00:32:26] Speaker 03:
Air fried, air fried, air fried.

[00:32:27] Speaker 03:
It was the back label that caused him to have some doubt.

[00:32:31] Speaker 03:
So I don't think we get there.

[00:32:33] Speaker 03:
That's our position.

[00:32:34] Speaker 01:
We've taken you a little over your time.

[00:32:36] Speaker 01:
Let me see if my colleagues have additional questions.

[00:32:39] Speaker 01:
OK.

[00:32:40] Speaker 01:
I want to thank you very much for your presentation.

[00:32:41] Speaker 01:
Thank both counsel for the briefing and argument.

[00:32:44] Speaker 01:
This case is submitted.

[00:32:45] Speaker 00:
Thank you, Your Honors.

[00:32:46] Speaker 01:
We'll ask our students to quietly leave in the back to head on to the rest of their visit here.

[00:32:51] Speaker 01:
And we'll invite counsel up for the third case.