[00:00:00] Speaker 02:
is 24-3185 Keto Natural Pet Foods versus Hills Pet Nutrition.

[00:00:07] Speaker 03:
Mr. Burt.

[00:00:08] Speaker 03:
May it please the court, Your Honor, Thomas Burt for plaintiff appellant Keto Natural.

[00:00:13] Speaker 03:
This case concerns an extensive campaign of commercial disinformation.

[00:00:18] Speaker 03:
The claim is under the Lanham Act.

[00:00:21] Speaker 03:
In this case, the district court below made two determinations.

[00:00:25] Speaker 03:
on a pleading motion, which this court reviews de novo, and both of those determinations were error because the court applied an incorrect standard.

[00:00:35] Speaker 03:
Those determinations were that the statements at issue were not commercial speech and that there were no false statements alleged.

[00:00:46] Speaker 03:
If the court affirms, Your Honor, it will have both public policy and also jurisprudential consequences.

[00:00:55] Speaker 03:
The public policy consequence is that an affirmance here would create a fairly broad immunity

[00:01:02] Speaker 03:
for a marketing executive or department to decide that their best tool was a campaign to say that their competitors' products were dangerous, even if there was no reason or basis to say that, and that they could escape liability for it if they were careful to make sure that by saying that, they avoided fora that looked like traditional ad campaigns.

[00:01:26] Speaker 01:
Is it your understanding that the district court rejected the establishment claim doctrine?

[00:01:33] Speaker 03:
Yes, Your Honor.

[00:01:34] Speaker 03:
The district court told us at page 27 of its opinion that what we had to do was prove that the dog food did not cause the disease, the disease-dilated cardiomyopathy,

[00:01:51] Speaker 03:
That's wrong in two respects, one of them much more important than the other.

[00:01:54] Speaker 03:
It's wrong in that the district court got its language crossed up between causation and correlation, but that's not actually the important way in which that determination was wrong.

[00:02:05] Speaker 03:
The important way in which that determination was wrong

[00:02:08] Speaker 03:
is the court did not recognize that the statements were of the kind where what we have to show is that the research does not support the thing that the speaker said the research supported.

[00:02:20] Speaker 03:
Your Honor, I think this is easier to understand if I focus the court's attention, which frankly, I don't think I did as good a job as I needed to at the district court level on a few statements.

[00:02:33] Speaker 03:
I'm just going to point the court to three.

[00:02:36] Speaker 00:
Let me interrupt before you do.

[00:02:38] Speaker 00:
This circuit has not yet adopted the establishment claim doctrine.

[00:02:44] Speaker 00:
Is that correct?

[00:02:46] Speaker 03:
Not squarely, your honor.

[00:02:47] Speaker 03:
There are eight circuits that have looked at it and all of them have said, yes, that's the law here.

[00:02:54] Speaker 03:
Some of them have found on those particular facts that the statements didn't qualify, but they've all looked at that doctrine and said, yes, that's the law.

[00:03:02] Speaker 03:
If this court were to decline to do so, it would create a split in the circuit, which was the point I was moving to.

[00:03:08] Speaker 01:
If we did decline to do so, would that

[00:03:12] Speaker 01:
undermine your criticism of the district court.

[00:03:15] Speaker 01:
In other words, would you then say, well, maybe the district court was right if you're going to go ahead and reject that doctrine, which you shouldn't?

[00:03:22] Speaker 03:
Not quite, Your Honor, but that's really a significant component of our falsity argument.

[00:03:30] Speaker 03:
I would say, as we did in our briefing, that since correlation is just math, studies that show an absence of correlation show

[00:03:40] Speaker 03:
no correlation, not merely that they have not shown correlation, if I've phrased that properly.

[00:03:46] Speaker 03:
So I think that the scientific literature has not found correlation means that it has found not correlation, which would be different from causation.

[00:03:56] Speaker 03:
Right?

[00:03:56] Speaker 03:
Correlation in that way is simply math.

[00:03:58] Speaker 03:
So that the statements about linked, associated, correlated would still be false.

[00:04:04] Speaker 03:
But I acknowledge the importance of establishment-based doctrine, what we're going to say.

[00:04:09] Speaker 03:
I wanted to have the court look at the statements at 203 of the complaint.

[00:04:14] Speaker 03:
We have established the link between diets like these.

[00:04:18] Speaker 03:
I'm omitting a few words.

[00:04:19] Speaker 03:
If you are feeding the dog one of these diets, talk to your veterinarian about switching.

[00:04:25] Speaker 03:
at 207 of the complaint.

[00:04:29] Speaker 03:
By now, most veterinary professionals understand there's a link between BEG diets and atypical dog breeds developing DCM and the one at 154D of the complaint.

[00:04:41] Speaker 03:
Research has shown that these diets

[00:04:45] Speaker 03:
are commonly grain-free commercial dry diets.

[00:04:48] Speaker 03:
Most dogs with dilated cardiomyopathy have been eating non-traditional diets for over a year, and I omitted a couple of words from that one.

[00:04:57] Speaker 00:
So the establishment claim theory is a theory to prove actual falsity, right?

[00:05:04] Speaker 03:
Yes, Your Honor.

[00:05:05] Speaker 00:
Okay, I'm not sure that you've preserved a claim for true but misleading.

[00:05:14] Speaker 00:
If we're focused on falsity right now.

[00:05:18] Speaker 00:
You want to disabuse me of that.

[00:05:21] Speaker 03:
Well, you're two things about that first that.

[00:05:26] Speaker 03:
If the court decides that we are in the land of true but misleading, which is sort of only different in gradation from false by necessary implication, the only real difference for our purposes between those two doctrines is that the latter requires that we show the impact on the actual consumers.

[00:05:49] Speaker 03:
And the complaint pleads that my client did an actual survey to show that.

[00:05:54] Speaker 03:
Under those circumstances, the court has reserved to itself the right to still review it because we made closely analogous arguments under a plain error standard.

[00:06:04] Speaker 03:
And if it's just applying the wrong standard to what we have to plead about the statements, I think the court should take the opportunity to do that, whether or not it's preserved the way it should have been.

[00:06:14] Speaker 00:
Okay.

[00:06:15] Speaker 00:
Thank you.

[00:06:19] Speaker 03:
So, Your Honor, I want to also point the court to the three nevers of the research, and we are not picking a fight here with the peer-reviewed research, which makes this different from, for example, ONY and its progeny.

[00:06:34] Speaker 03:
There has never been a case that shows a correlation between a study that shows a correlation between BEG or a group of them dog foods and developing DCM or a correlation between dogs eating BEG or grain-free foods and living shorter lives.

[00:06:54] Speaker 03:
And there's never been a case that shows that a dog that already has dilated cardiomyopathy

[00:07:01] Speaker 03:
will improve its condition from dietary change alone.

[00:07:04] Speaker 03:
So this is a little like Alpo when then Judge Thomas said, you can't say that your dog food will treat hip dysplasia if there is no empirical basis to say that.

[00:07:18] Speaker 03:
We are in the land of statements that assert or by necessary implication tell the listener, science backs me up on this.

[00:07:27] Speaker 03:
The research has shown studies prove.

[00:07:30] Speaker 00:
Do any of the academic articles reference any particular pet food?

[00:07:37] Speaker 03:
I cannot point to one that references a particular brand.

[00:07:42] Speaker 03:
So, Your Honor, I wanted to address that in light of the commercial speech wrong, if I may.

[00:07:46] Speaker 00:
And that's where I'm focused.

[00:07:52] Speaker 03:
My friend at the other podium spent a lot of effort in the briefing on the second prong saying, well, there's no direct attack on Keto Natural specific product.

[00:08:05] Speaker 03:
And of course, this is a class case where the class of dog food makers includes everybody swept within the defendant created category BEG.

[00:08:16] Speaker 03:
the cases do not indicate that the brand is how one assesses the second prong of the Bolger standard.

[00:08:23] Speaker 03:
In fact, P&G in the Fifth Circuit has brand name but no category of products, whereas Bolger itself has category but not brand name.

[00:08:43] Speaker 00:
Does it matter who the speaker is?

[00:08:45] Speaker 00:
If you don't have a specific reference to a product, you might still have a claim, but I think the cases would suggest that that depends on who the speaker is.

[00:09:00] Speaker 00:
Would you agree?

[00:09:00] Speaker 03:
It absolutely depends on who the speaker is, Your Honor.

[00:09:03] Speaker 03:
And by that, I don't mean whether it's Hills or one of its co-conspirators.

[00:09:07] Speaker 03:
The court rightly said, though I think it backed off it when it addressed the statements, that it was assuming without deciding vicarious liability.

[00:09:15] Speaker 03:
But who the speaker is in terms of whether the speaker is a direct competitor is tremendously compelling.

[00:09:23] Speaker 03:
If there's one factor, and Bolger does say that no one factor controls,

[00:09:27] Speaker 03:
If there is one factor against which all of this is read, the question is, is the speaker or the conspirator putting out the statements,

[00:09:39] Speaker 03:
a direct competitor of the people they're speaking against.

[00:09:42] Speaker 03:
What we have here, Your Honor, the complaint pleads that Hills identified a group of foods that was taking its market share and decided we have to say something really bad about all of those products to claw back that market share.

[00:09:56] Speaker 03:
Direct competitor is the touchstone in the case law of commercial speech.

[00:10:00] Speaker 03:
That factor alone is not enough, but they are read holistically as Bolger itself and P&G and the Fifth Circuit tell us.

[00:10:10] Speaker 00:
Is there any evidence that the academics were compensated, depending on the results of their articles that the conclusions of their articles.

[00:10:24] Speaker 03:
No, and again, Your Honor, we are not picking a fight with the peer-reviewed science.

[00:10:28] Speaker 03:
We are not saying that they use bad data or applied torque to the conclusions they reach.

[00:10:35] Speaker 03:
In fact, ONI tells us that the peer-reviewed science and the results, but only that, right, are protected.

[00:10:44] Speaker 03:
What we are saying is if you actually look at what the studies say and not how they are described in retransmission or in re-reference or when they're referred to by Hills's own veterinary education, the actual results of the study never show that there's a correlation between these foods and this disease.

[00:11:05] Speaker 03:
The peer-reviewed science backs my client up.

[00:11:10] Speaker 00:
So I guess what my focus is, I see a big difference between the veterinary blogs and public media quotes and Hill's own website and Hill's educational programs, because to me, if you look at these cases, it is critical who's speaking.

[00:11:33] Speaker 03:
Well, Your Honor, I think that reads the conspiracy allegations out of existence.

[00:11:38] Speaker 03:
I think none of those cases address circumstance where there's an actual pleading conspiracy and here there is the district court did not decide whether the conspiracy was properly pleaded.

[00:11:49] Speaker 03:
What we have here every statement is made by an alleged conspirator and if the district court wanted to decide that that that pleading didn't hold it needed to do that below.

[00:12:01] Speaker 03:
since it said it was going to assume without deciding that Hills is vicariously liable for every statement made by a co-conspirator.

[00:12:11] Speaker 03:
That's not an issue the court should address on that appeal, on this appeal.

[00:12:17] Speaker 03:
If the court doesn't have further questions, I would like to reserve the balance.

[00:12:21] Speaker 03:
May.

[00:12:24] Speaker 02:
Mr. Panachowski.

[00:12:26] Speaker 04:
Thank you, Your Honor.

[00:12:27] Speaker 04:
Good morning, your honors, and may it please the court, Stanley Panikowski for the Appellee Hills Pet Nutrition.

[00:12:33] Speaker 04:
The district court's judgment should be affirmed, your honors, for at least one of two independent reasons.

[00:12:39] Speaker 04:
First, Keto Natural did not plausibly allege commercial advertising or promotion.

[00:12:45] Speaker 04:
Second, Keto Natural did not plausibly allege false or misleading representations of fact under any doctrine.

[00:12:53] Speaker 04:
Both of these are essential elements of a Lanham Act false advertising claim.

[00:12:57] Speaker 04:
So the absence of either one supports the district court's correct decision to dismiss the false advertising claim with prejudice.

[00:13:06] Speaker 00:
Let me start with falsity.

[00:13:08] Speaker 04:
Yes, Your Honor.

[00:13:09] Speaker 00:
If we were to adopt the establishment claim doctrine, would they be able to make out falsity here?

[00:13:20] Speaker 04:
know, Your Honor, Keto natural would not be able to plausibly allege falsity, even if this court recognizes the establishment claim doctrine.

[00:13:28] Speaker 04:
And that is because most why not?

[00:13:30] Speaker 00:
I mean, it seems to me that they are representing a conclusion from the studies that the studies and certainly the FDA investigation does not support.

[00:13:49] Speaker 04:
Your honor the establishment claim doctrine as articulated by the a circuit in their own pooling case has.

[00:13:56] Speaker 04:
A specific requirement that those types of statements are statements about the quality or characteristics of a product beginning with a phrase like test proves.

[00:14:08] Speaker 04:
study show, or some other phrase that means the same thing.

[00:14:13] Speaker 04:
And here, Your Honor, we don't have any alleged statements that fit that bill.

[00:14:18] Speaker 04:
Most of the statements do not even have anything such as research shows.

[00:14:25] Speaker 01:
Pause there, because some statements were identified earlier in the argument, and on page 38, 39, those show up, or at least some of them.

[00:14:35] Speaker 01:
Research has now shown

[00:14:36] Speaker 01:
The FDA has identified marine correlation.

[00:14:40] Speaker 01:
Many have linked diet associated, DCM, blah, blah.

[00:14:45] Speaker 01:
In other words, I don't know that you can say what you just said.

[00:14:50] Speaker 04:
Your honor, taking that first example, the research has now shown, first, it does matter who the speaker is, and this is not a statement that was made by Hills itself, but setting that aside, your honor, what this statement is talking about is research has now shown

[00:15:10] Speaker 04:
some general proposition about the state of the science here.

[00:15:15] Speaker 04:
It's not like the other establishment claim cases that Keto Natural Cites, where there's some direct comparison between two specific products or a statement being made about a particular product.

[00:15:29] Speaker 00:
But there is because, you know, it's the research has shown if you feed your dog these, I don't know, the natural

[00:15:39] Speaker 00:
products that you're gonna give them a heart disease.

[00:15:45] Speaker 00:
I mean, the research doesn't support that, does it?

[00:15:49] Speaker 04:
Your Honor, when you look at this statement and the allegations of the complaint, there were the case reports that were made to the FDA.

[00:15:58] Speaker 04:
There were 515 cases that were reported.

[00:16:01] Speaker 04:
The FDA itself said that over 90% of those reports

[00:16:07] Speaker 04:
were for grain-free diets.

[00:16:09] Speaker 04:
And you had the FDA itself launching the investigation, holding scientific symposia, reporting updates.

[00:16:16] Speaker 04:
So the statement, research has now shown that these diets are commonly grain-free commercial dry diets that contain pulses into a lesser extent potatoes or sweet potatoes, is simply a characterization of the case reports.

[00:16:30] Speaker 00:
But the allegations here are that, based on this conspiracy,

[00:16:36] Speaker 00:
They intentionally only referred cases to the FDA that were dogs who were eating their competitors' food.

[00:16:46] Speaker 00:
I mean, I think like Judge Phillips that if we recognize an establishment claim doctrine, there's enough here to get over the hump.

[00:17:00] Speaker 04:
Your honor, with respect to the issue of conspiracy, that's again where it's very important to analyze who is speaking here.

[00:17:09] Speaker 02:
Are you arguing that before he answered that we should not adopt the establishment doctrine?

[00:17:15] Speaker 04:
No, Your Honor, Hills is not taking that position because Hills believes that Keto Natural has not plausibly alleged literally false establishment claims anyway for the multiple reasons we stated in our brief, some of which we've discussed so far, that this court can assume for the sake of argument that that doctrine is being adopted.

[00:17:38] Speaker 04:
if the court were to decide to adopt the doctrine.

[00:17:41] Speaker 04:
I think what is important here is to limit it in the way that the A-circuit did in Ron Poulenc, because Keto-natural's argument would essentially use the exception to swallow the rule and would convert every statement about the state of the science, about the characteristics of a product, about a comparison between two products to an establishment.

[00:18:05] Speaker 02:
Does their civil conspiracy theory

[00:18:07] Speaker 02:
Does that solve their who the speaker is problem or not?

[00:18:14] Speaker 04:
No, Your Honor.

[00:18:14] Speaker 04:
Their civil conspiracy claim does not solve who the speaker is problem for three reasons.

[00:18:21] Speaker 04:
First, when you're looking at the first reason why their claims fail, commercial speech,

[00:18:28] Speaker 04:
You don't have any issue there in terms of it mattering.

[00:18:34] Speaker 04:
Whether a certain defendant is vicariously liable for the statements of others, because when you're looking at whether the statements constitute commercial speech, you're looking at factors like, is it an advertisement?

[00:18:45] Speaker 04:
Does it refer to a specific product?

[00:18:48] Speaker 04:
Is there an economic motivation?

[00:18:49] Speaker 04:
vicarious liability does not come into play here.

[00:18:52] Speaker 04:
Second, Your Honor, there is a circularity in Keto Naturals vicarious liability argument.

[00:19:00] Speaker 04:
For civil conspiracy under Kansas state law, cases like Mays and Stolt, you need to plausibly allege and ultimately prove at least one overt unlawful act in furtherance of the conspiracy.

[00:19:16] Speaker 04:
Here, the only predicate act that KetoNatural has identified are Lanham Act false advertising violations.

[00:19:23] Speaker 04:
And then KetoNatural has said in its briefing on appeal that it is relying on civil conspiracy alone to show vicarious liability.

[00:19:35] Speaker 04:
Therefore, you have a circularity there where you cannot use the Lanham Act violation

[00:19:40] Speaker 04:
as a predicate act for civil conspiracy and vicarious liability until you've actually shown a line of act violation.

[00:19:48] Speaker 04:
And therefore Keto Natural is limited to show that predicate act to the statements by Hills itself.

[00:19:56] Speaker 04:
And your honors, when we look at the complaint, we find very few statements that are alleged to be made by hills itself.

[00:20:04] Speaker 04:
And if we, if we look at the two that the complaint highlights, we have a pages for forty one to four forty four of the appendix, an article on the hills website, cardiomyopathy and dogs, what you need to know and.

[00:20:20] Speaker 04:
Keto natural does not allege that Hills made any false or misleading statements in that article under the establishment claim doctrine or otherwise.

[00:20:30] Speaker 04:
Rather, there's a sentence in that article which talks about a number of topics, not just nutrition related to DCM.

[00:20:38] Speaker 04:
And it says referring to DCM, the disease is at least partly genetic and nutrition may also play a part according to the University of Illinois College of Veterinary Medicine.

[00:20:48] Speaker 04:
And on the academic institution's name, there's a hyperlink then to a University of Illinois article discussing this issue.

[00:20:58] Speaker 00:
Your honors, if this were- And let me just, in one of those, the alternative proteins in dog food and cardiomyopathy, it actually has a section at the bottom of the page where it advertises specific Hill's products.

[00:21:16] Speaker 04:
Yes, Your Honor, there is a portion at the bottom of that page where it says related products and has links to those products.

[00:21:25] Speaker 00:
However, Your Honor... That seems like an advertisement to me.

[00:21:28] Speaker 04:
Your honor, if those links were looked at in isolation, one would say that you've plausibly alleged those are links to advertisements.

[00:21:40] Speaker 04:
But the focus of the commercial speech inquiry under Bolger and under cases like the 11th circus decision in Tobinic is on the content of the challenge speech itself.

[00:21:52] Speaker 04:
So when you look at the statement, for example, that's made it

[00:21:55] Speaker 04:
Page a 469 of the hills article, you reference some of these trends may even post health risks to dogs and that then has the hyperlink to the Tufts University article in.

[00:22:09] Speaker 04:
In that situation, Your Honor, you're simply making a statement that is identifying a general issue of scientific concern, and then you're linking to an academic article discussing that.

[00:22:24] Speaker 04:
If the commercial speech doctrine were to be construed so broadly that the mere fact that later on in that page you have related products, hyperlinks, then you would simply be converting any way in which

[00:22:39] Speaker 04:
a for-profit entity communicates with the public, including a potential customer base, into commercial speech simply because there are links on their website.

[00:22:50] Speaker 04:
And the 11th Circuit in Tobinic makes clear that that's not enough.

[00:22:55] Speaker 04:
In Tobinic, the defendant's blog post on a blog of which the defendant was the executive editor did contain

[00:23:03] Speaker 04:
advertisements themselves and did contain links to other revenue generating sites.

[00:23:09] Speaker 04:
And the 11th Circuit made clear that those features by itself did not convert the commercial speech being challenged into an advertisement.

[00:23:19] Speaker 04:
And if so, you would have the problem where the non-core speech that Bolger identifies as being subject to its three-factor test would

[00:23:29] Speaker 04:
Always be drawn into the realm of commercial speech and distinguish Bolger then.

[00:23:37] Speaker 04:
Your honor, we would distinguish Bolger on several grounds.

[00:23:39] Speaker 04:
1st, taking the 1st Bolger factor advertisements.

[00:23:43] Speaker 04:
In in Bolger, the Supreme Court expressly stated that the informational pamphlets were conceded to be advertisements.

[00:23:50] Speaker 04:
There's no such concession here.

[00:23:52] Speaker 04:
And even when you compare the facts of this case with the informational pamphlets in in Bolger, apart from that concession in in Bolger, the

[00:24:04] Speaker 04:
Defendant was proposing to send these informational pamphlets unsolicited directly to consumers.

[00:24:12] Speaker 04:
They were classic advertisements, whereas here we don't have that we have the hills website.

[00:24:17] Speaker 04:
We have a learn tab where.

[00:24:21] Speaker 04:
veterinarians and others can go in order to learn more about issues related to pet health and nutrition and scientific issues.

[00:24:29] Speaker 04:
And for the reasons we explained in our brief, that website and those articles and most important, the statements contained in those articles do not constitute advertisements under any reasonable view of that term.

[00:24:43] Speaker 04:
Second, Your Honor, when you turn to Bulger's second factor of refers to a specific product.

[00:24:49] Speaker 04:
Now it is, to begin with, important that the Supreme Court use the word specific product.

[00:24:55] Speaker 04:
They did not just say product generally.

[00:24:59] Speaker 04:
We have the Supreme Court focusing the inquiry first on, is there a specific product identified in the speech?

[00:25:06] Speaker 04:
And then the Supreme Court goes on to identify two exceptional situations.

[00:25:12] Speaker 04:
Now, again, we're already in the realm of non-core

[00:25:16] Speaker 04:
commercial speech and so First Amendment interests are heightened.

[00:25:20] Speaker 04:
And then here we're getting into a realm that's an exception to a factor that might be an indicium of non-core commercial speech.

[00:25:29] Speaker 04:
And what the Supreme Court said is

[00:25:31] Speaker 04:
A reference to a product in generic terms may suffice if, for example, the speaker controls such a large share of the market that in referring to that generic product they are effectively referring to.

[00:25:47] Speaker 04:
their own product.

[00:25:48] Speaker 04:
And in that case, it was Trojan brand condom manufacturers.

[00:25:52] Speaker 04:
The Supreme Court found that that element was met here under the terms of Keto Naturals own allegations that appendix page 21 paragraph three of the complaint, the supposedly favored products in this

[00:26:09] Speaker 04:
Speech about the scientific debate are the products of hills and at least 2 larger competitors and Keto natural makes much of the fact that.

[00:26:19] Speaker 04:
Hills pet food revenues are only 20% those of purine is there's no plausible allegation there that.

[00:26:26] Speaker 04:
Hills would meet that first exception to boulder second factor and you're either the second example that the Supreme Court gives as an exception is a trade association and is a trade associations very mission to promote a generic category

[00:26:42] Speaker 04:
of products and therefore if the trade association is the speaker and they're talking about the generic product that's enough to satisfy that reference obviously here hills is not a trade association does not dominate the market and we have the problem at the other end your honors where the allegedly

[00:27:02] Speaker 04:
offended products are of this broad class that also includes a number of Hills products.

[00:27:10] Speaker 04:
When we look at the FDA case reports, we see at pages a 178 a 207 234 244 248 249 that Hills is own products, including a number of Hills green free products are also within that category.

[00:27:29] Speaker 04:
Your honors, I see my time has expired.

[00:27:31] Speaker 04:
If there are no further questions, thank you.

[00:27:34] Speaker 04:
And Hills asked that this court affirm the judgment of the district court.

[00:27:38] Speaker 02:
Thank you.

[00:27:39] Speaker 02:
Thank you, Mr. Panikowski.

[00:27:40] Speaker 02:
Mr. Burt, you had some rebuttal time.

[00:27:42] Speaker 02:
Thank you, your honor.

[00:27:44] Speaker 03:
On the scope of the application of the establishment claim doctrine, I would ask the court to look at the excellent discussion in BASF in the Seventh Circuit, Eastman in the Fifth Circuit, and especially

[00:27:58] Speaker 03:
Southland Sod Farm in the ninth, where there was a bar chart that simply said, proof that our product, I'm alighting some words, proof that our product saves time and money.

[00:28:12] Speaker 03:
The court said in that context, you're clearly saying that the science backs me up on this.

[00:28:16] Speaker 03:
I think while my learned opponent points to one Rome Polonk in the eighth,

[00:28:24] Speaker 03:
The bulk of the case law on establishment claim doctrine is flexible about what constitutes a statement that the science backs me up on this.

[00:28:34] Speaker 03:
I think, Your Honor, the best way that I can put the doctrine is if the speaker's statement is of the nature, research shows this, the this has to be what the research shows.

[00:28:50] Speaker 02:
My opponent raised... What's your response to his?

[00:28:54] Speaker 02:
Bulger discussion.

[00:28:59] Speaker 03:
So, your honor, we know that the advertising problem, the question of whether it is advertising is read holistically and flexibly because P and G in the 5th circuit did that P and G actually were mandated and said.

[00:29:14] Speaker 03:
If the district court finds that the statements, and it was a scurrilous allegation of disinformation about the directly competing product made by distributors for Amway, if the statements were made

[00:29:29] Speaker 03:
motivated by the attempt to gain a commercial advantage, then the first prong, if it's advertising, collapses with that.

[00:29:37] Speaker 03:
I also think my learned opponent has asked the court to render a decision that's directly contrary to the Ninth Circuit in Erics just a couple of years ago.

[00:29:47] Speaker 03:
Erics says, we live in the age of the influencer campaign.

[00:29:52] Speaker 03:
Those campaigns obviously look different, but they're clearly advertising campaigns on the specific product.

[00:29:59] Speaker 03:
They said specific products, not brand, and I think that means what it says, and I think there are there are cases in our brief that back that up if you if you say.

[00:30:09] Speaker 03:
BEG dog foods or grain-free dog foods, that's a specific product.

[00:30:14] Speaker 03:
And I think the fact that Hills is not an overwhelming majority is just one of the big three, is explained by the factual circumstance where Hills was the one losing market share to all of these smaller companies and in fact regained it.

[00:30:32] Speaker 03:
I've run my time, Your Honor.

[00:30:35] Speaker 02:
Thank you, Council.

[00:30:36] Speaker 02:
Council are excused and the case is submitted