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case number 23-1509.

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Animal Will Defense Fund, Inc.

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at Balance versus Thomas J. Vilsack, Secretary, United States Department of Agriculture at AL.

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Mr. Waltz for the balance, Mr. White for the appellees.

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Good morning, counsel.

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Mr. Waltz, please proceed when you're ready.

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Good morning.

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I'm Danny Waltz on behalf of Animal Legal Defense Fund.

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ALDF brought this case on behalf of its member, including Marie Mastraca, an unwitting consumer

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who regularly bought misleading Purdue chicken products that the government failed to review.

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She has a genuine interest in continuing to buy raw chicken products for her elderly dog.

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And because of the government's failure to review label imagery, she cannot have confidence in any of the chicken product labels that she must buy.

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District Court.

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What about written claims?

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I thought that the challenge here was limited to graphic claims.

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No, it's not, Your Honor.

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The challenge is a pattern and practice claim based off of the agency's failure to approve or review and properly approve claims that produce fresh line claims, which confuse Mestraco on both the textual grounds and the imager grounds, as well as the agency's failure to review imagery altogether.

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Imagery meaning words.

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So the PPIA doesn't really distinguish within labels.

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Label is to be reviewed holistically.

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That includes both the graphic imagery and the text itself.

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And so when I say imagery, I'm sorry, I mean the graphics on labels.

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That would be the chickens that are outside under the sun, as opposed to words like cage-free, both of which misled Mastroco when she purchased the fresh line products.

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But I thought the upshot of the complaint was that the problem that's seen is that there's not a review of the graphics.

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And because there's not a review of the graphics, there's no way to look at the pictures and get an accurate sense of whether the pictures are giving you the real world.

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And because the pictures aren't giving you the real world,

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with respect to labels other than the Purdue labels that are directly an issue.

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The second claim is about a general confusion and an inability to figure out what the real world is.

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And so essentially, a decisional paralysis doesn't allow her to make an informed assessment of which products to buy to make sure that chickens are being raised in a way that

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that is commensurate with her beliefs, because you can't tell from the pictures whether that's, in fact, the case.

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So isn't it about the injury comes from the lack of review of the pictures?

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So the claim is about the pictures.

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Yes, I agree with most of what you're saying, Your Honor.

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I think the injury and the claims are both

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cover or deal with both the sort of interplay of the text and the imagery.

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It's under the PPIA, Congress sought to define label broadly to include both the imagery and the text and sought to protect consumers from

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false and misleading claims that the government fails to review properly.

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So when you're looking at the injury, I think you're looking at the holistically label.

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And the imagery, black letter consumer law says that the, I think in the words of the second circuit,

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consumers aren't required to do this disputatious dissection of labels to figure out what aspects of labels are proper or may be accurate, what aspects of the labels are inaccurate, and weigh those against each other to avoid injury or to avoid having that consumer harm.

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And I think that's what the government, on appeal, is asking Ms.

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Mestraco to do.

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They're asking for her to be able to

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read certain aspects as to ignore the imagery on a label that the producers are putting on there, sort of like a siren song to attract consumers to the label.

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And know that that may be misleading, but focus entirely on the text.

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That's not what consumer case law requires.

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It's also not manageable.

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Can I ask you this?

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I know you'll resist that this is the real world, but just assume for purposes of the hypothetical this is the real world, that there's no other chicken product on the shelves that has a picture.

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It doesn't have a picture at all.

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It's got words.

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They have words, but they just don't have pictures.

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If there's no other product that has a picture, and there's no allegation in the complaint that there is another product that has a picture, would she still state an injury?

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I think so, Your Honor.

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You're saying no other because she does still have access to the Purdue product.

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Oh, yeah.

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Sorry.

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Thanks for the refinement.

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I'm talking about the injury that stems from the inability to suss out whether the non-Purdue products

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are involved chickens that are raised in a manner that she finds consistent with her beliefs.

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But I don't think that there needs to be an allegation of another product available to her aside from the Purdue products because, you know, pursuant to Davidson,

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But she would just be like the Davidson plaintiff.

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Someone who is interested in a product wants to otherwise wants to buy that product was misled.

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Right.

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And I'm assuming that just for purposes of this, I'm assuming that the injury she's claiming is not that she might buy another again by Purdue.

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And so she could be misled again about the same label by which she's already been misled, but her claim is only about non-Purdue labels.

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And on that, if there's no other product that has a graphic that includes a picture at all, would she still be stating an injury?

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As to that part of it, not as to that I might buy another Purdue product and therefore I might be injured again because I misled by Purdue, that I might, that I have an injury based on the non-Purdue labels

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given that the government doesn't review the picture on the Purdue label in the way that they should have, is she stating a claim as to the other non-Purdue labels if in fact there's no other non-Purdue label that has a picture at all?

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It's hard to envision a world where there is no other situation where she could walk into a grocery store and there's no imagery on there.

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I think she has a lack of, now that she knows that there's a lack of, the government is failing to

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fully adequately review labels, in part because of its failure to review the imagery, but also because of her experience with the government allowing the Purdue labels to pass through its review, including the terminology cage-free, while that being

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I think we have in the complaint that one in three consumers is misled by that label.

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She doesn't have any confidence in- What was that?

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Did you just say that it wasn't really highlighted in the complaint that Cage Free was misleading?

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No, sorry.

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One in three, as we alleged in the complaint, we had a consumer expert do a survey and found that one in three consumers found the Purdue labels to be misleading.

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And that was a comp, because of, as Mastraco alleged, just like Mastraco, a combination of the cage-free textual terminology and the imagery.

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the interplay of those together.

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What rise on your argument that it's the interplay of the text and the imagery?

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I mean, put aside for a minute the government's third argument that consumers can avoid any misleading effect of imagery by just relying solely on the text.

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Assume we don't accept that argument.

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Why are you making this interplay?

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This is not what I understood from your brief to be your argument, this interplay argument.

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I thought the point was, even without any claim about free range or free Rome, that the imagery on the Purdue labels implied that the chickens were actually raised out of doors with sun and grass and freedom to move around, and that that was an implication that arose from the image.

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Is that not your position?

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That is the position.

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So I think what the government should do is when reviewing labels is look at the labels holistically.

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That includes both text and imagery.

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But yes, the imagery of the chickens outside on the grass under the sun does give the strong inference that the chickens were raised outside.

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when, in fact, they were not.

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And that's an arbitrary and capricious claim we expect to succeed on, should we be able to make that merits argument.

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But to go to this whole back to the government's argument that Ms.

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Strachan may rely on the text, I just want to take a step back

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uh, sort of question what they're arguing, which is seems to be putting a significant burden on the consumer to have to figure out what hot holes to avoid.

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Um, not paying attention, don't pay attention to the text, excuse me, to the imagery.

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Don't pay attention to certain texts that's already confused you.

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Um, and then, uh, consumer must need to, uh,

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read the Federal Register to fully understand what all the textual claims may be so that she may not be a void.

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The Cultural Products Inspection Act doesn't put that burden on the consumer.

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It actually puts it on the government.

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So does your claim depend on us accepting the approach of Davidson?

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No, Your Honor.

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I think that there are.

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The trans union, for example, identifies economic injury as a tangible concrete interest.

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She has had economic, Strachow has had economic injury.

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What is the alleged economic injury?

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She said that she sought to purchase a product that aligned with her values, that she perceived aligned with her values and was misled.

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And didn't get the benefit of her bargain and that's it.

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You described that as ethical It doesn't seem as so so what about when it seems to me one way to have standing in a case like this for future injury is and I'm thinking a little bit about the facts of like the Johnson and Johnson case and although the majority rejects this analysis, but if a competitor

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of Purdue.

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Let's say a competitor that does actually have free roam or free range chickens and uses a similar imagery on their package to Purdue's fresh line imagery.

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And they charge a similar price.

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But looking at the two side by side in the grocery store, consumers or maybe, you know, Purdue charges slightly less.

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So the

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consumers see that as a commensurate product and they buy produced fresh line product over the one that's much more expensive to produce and actually a different kind of product.

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So in that situation, it seems that the competitor would have standing because the price of produced product is artificially inflated.

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I don't take you to be alleging that that harm is present in this case, although I'm unclear why you aren't alleging that.

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For example, even though, I mean, we have this Catch-22 situation where as soon as a potential plaintiff is aware that something's misleading, she's no longer misled.

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And therefore, how can she claim she would rely on that in the future?

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But it seems like this competitor standing type analysis could be applicable.

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in a non-competitor case like this, if the plaintiff says, I'm aware now, but the rest of the world isn't, and I have to buy something, and even if I'm going to tolerate the inferior product and buy Purdue, I'm paying too much.

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for what it is.

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I don't see that in New York.

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Yeah, I think we do argue that with the line of lost opportunity cases, I think Orangeburg cases, which is, you know, the hypothetical you just presented of the competitor out there who is actually adhering to the practices that are on the label.

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unlike the humane washing.

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She doesn't, Mestraco doesn't know that that alternative product is necessarily accurate.

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But it may be, as you just said.

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And she has injury not only from being, the choice is either in this situation purchase a product that she may

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She believes that she believes has meets with her preferences, but but doesn't so she doesn't get the benefit of her bargain or she forgoes alternative.

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She forgoes a product that she does want to buy.

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And because of the government's failed regulation, she doesn't have she's the last opportunity to access products that she could even without an alternative product.

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the same economics would obtain.

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If Purdue is differentiating its fresh line from some other ordinary and charging more, but really all that's improved about the fresh line is that it's got a prettier label that actually is misleading enough to make people pay a premium, you don't need a competitor in the market to make that claim.

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But I don't take you to be making that claim here.

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That when you say she believes it like she now knows that produce product doesn't perform as she wants and whatever ethical injury that may cause her doesn't seem to me to be tied to misrepresentation.

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And so it doesn't seem like a harm that's necessarily caused or redressable.

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Well, I see that as a consumer confusion injury as opposed to some sort of ethical injury.

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So it's no longer confused on count one.

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It's no longer confused vis-a-vis Purdue.

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But as to Purdue, she's not.

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But she is to the other products that are out there in the market.

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And in fact, actually, I would disagree.

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I'm not sure she's entirely, she is no longer confused to Purdue.

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What she knows is that, just as in Davidson, she knows that she doesn't know.

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She knows that this product is the result of certain practices.

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But Purdue's, I think we have a complaint that the Purdue's website says that it is moving towards chickens with raised in outdoor conditions, back 25%.

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of the chickens in its pipeline are raised outdoors.

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And so there may be a point in time when the label is accurate, or at least is accurate in a way that is consistent with what she prefers.

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But she will never know whether she can rely on it.

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And we'll have that ongoing.

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Let's just focus on the time aspect of this and this building on what some of the back and forth with Judge Pillard.

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This is a frustrated consumer.

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She bought the product in the past.

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She alleges that she was misled and that would clearly give her standing to seek some kind of backward looking

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traditional consumer protection action.

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This case is all about forward looking.

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So you've said this a couple of times, but walk me through exactly what is her future injury that would be redressed by an order

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taking this label off the product.

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She knows everything she needs to know.

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She knows that the product doesn't conform to how she would like animals to be treated.

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And she knows the government doesn't review the cartoon.

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So, right, it's as if the cartoon just doesn't mean anything.

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She knows all that.

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How is she better off if

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the label, the cartoon comes off.

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She's better off.

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So first a couple of things.

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She unfortunately cannot seek backward looking thanks to the preemption provision.

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Right.

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But you need standing.

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You need a separate theory of standing for forward looking.

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That's right.

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The way in which her injury would be redressed by a court order that the government review labels is that if the government starts reviewing imagery on labels, and it does so through its pre-market approval process, products that are misleading

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All of a sudden, imagery that's misleading gets weeded out, doesn't make it through the government's pre-approval process.

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And those that are not misleading, or that are accurate, where the applications submitted includes evidence showing that the chickens are raised outdoors, those will make it through.

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And so she loses this consumer confusion, this lack of confidence that Judge Pillard and I were just discussing, because everything that's out there

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she should have confidence.

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It comes from chickens who are raised outdoors.

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How is that harmful to Crete?

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Can you describe how it would change her value proposition or her purchasing behavior?

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You would allege that she will continue in the existing market to buy chicken breasts.

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Yeah, yes.

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So unlike some of the other cases, the government sites that support our position, I think that her compulsion to buy chicken breasts for her dog is much stronger than what we see in other circumstances.

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It's helpful in certain ways, but it's unhelpful in another way, which is what is the concrete

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benefit to her.

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Other than dispelling confusion, can you make that more concrete in terms of a different purchasing decision or some value?

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Well, she has more certainty that the purchasing decision that she makes is going to be accurate.

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And she will

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not risk.

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So it's almost like an increased probability of certainty.

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Circumstances she's in now, as we were discussing, is that she will either buy a product that she comes from practices she abhors without knowing it, or with knowing it, if she feels like she has to only buy the particular product, or she's buying a product, or she's foregoing a product.

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She has the risk of foregoing a product that she may value.

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there's this risk that that will happen.

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I mean, she may get lucky and buy a product that is accurate, but she still has ongoing consumer confusion there.

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A court order that would force a government to review labels would increase the probability that she's making that accurate.

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Judicial review here is just through the APA, right?

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Yes.

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PPIA, cause of action, is for others, right?

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So you need a discrete agency action that's either final or unlawfully withheld.

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How do you get the right to... You set a pattern and practice claim that would

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globally require the agency to review labels.

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How do you get that through the APA?

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What do you think the most you could get is something specific to Purdue?

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In the record, we have, after submitting the APA,

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ALDF had submitted a request with the agency to deny Purdue labels its pattern of constant approval of Purdue labels.

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And the agency's response was that it does not review imagery at all on labels.

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And so as part of that,

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That was central, I think, to the agency's decision to continue approving Purdue labels.

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And so what we'd expect from a court order would be that that practice is an order that that practice of ignoring or not paying attention to imagery is unlawful.

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And the agency action or inaction specific?

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The approvals of the labels.

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without looking at the graphics?

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Yes, without.

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Yes, exactly.

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So just to make sure that I'm not confused about your consumer confusion rationale, because as I understood it,

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Your response to the questions about what's the forward-looking injury is not about the forward-looking injury vis-a-vis the Purdue label.

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I mean, you may have a Davidson kind of argument about that, but let's just put that to one side.

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Your focus is, no, there's confusion because the lack of review of the graphics of the labels means that she can't look at the other labels and be sure that their images are accurately portraying the way in which the chickens are not allowed to be outside.

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And as to that, in order to have that injury, just going back to where I was at the beginning, we have to assume that there's other labels that, in fact, depict chickens being outside.

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Because if there are none of those, then the remedy can't help her.

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Because if there are no other images like that, then she's not confused by anything that's out there in a way that's going to be addressed by what you're asking the agency to be required to do.

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Yes, I think that's right.

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Setting aside the Purdue.

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Right.

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Putting aside the Purdue for the consumer confusion one, which is looking beyond Purdue to other labels.

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There has to be other labels that in fact contain a graphic that depicts chickens being outside.

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And if there were, then I take your point.

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Then at that point, if she thinks that the agency is falling asleep at the switch and they ought to be reviewing those and aren't, then she could look at the labels and think, I'm confused.

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I don't know whether to trust the image on this.

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It may or may not be accurate.

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I really care about whether it's accurate because I really care about only buying chickens that are allowed to roam outside.

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I can't look at this picture and know whether it's in fact accurate.

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But if there are no other such pictures, then there's no interest.

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Yes, Your Honor.

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I think that that's right.

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We allege at paragraph 34 that she's going to suffer a lack of confidence in whether there are any chicken labels that may accurate descriptions of the product's animal raising conditions.

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So we think that that is broad enough to encompass those other labels that are out there on the market.

[00:26:08] Speaker 02:
But it does say that there are such labels.

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I know, Your Honor, but I think any stroll down a supermarket aisle will make clear that there are.

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Also, it's a bit confusing just to even know, you know, to try to define what that type of label is.

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I'm thinking of chicken labels where the name itself also is of a chicken or is of, there's

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There are labels out there that will say, like, naked chicken, and it will be done in imagery that is of leaves.

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And so is that an image, or is that text, or is it both?

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It's really hard to disentangle the two.

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I think that's part of the reason why Congress defined label to include both text and imagery.

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You know, that said, if that's a needed allegation, that's something that we absolutely could add in.

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I don't have any concern.

[00:27:08] Speaker 06:
All right.

[00:27:09] Speaker 06:
Why don't we give the government a chance and we'll give you a little bit of time.

[00:27:13] Speaker 06:
Thanks.

[00:27:13] Speaker 05:
Thank you very much.

[00:27:21] Speaker 05:
Thank you, Your Honor, and may it please the court, Graham White for the government.

[00:27:25] Speaker 05:
The district court correctly held that plaintiff lacks associational standing because the complaint does not allege that any of plaintiff's members are likely to suffer a substantial risk of future injury.

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I'm going to say at the outset, in response to some of the questions that were just raised as a point of clarification, this case is about imagery.

[00:27:39] Speaker 05:
It's not about the written text.

[00:27:41] Speaker 05:
The complaint is not alleging that the government fails to regulate written text here.

[00:27:45] Speaker 05:
It's alleging that the government is not reviewing imagery.

[00:27:47] Speaker 05:
And while we very much dispute that that's the case, the complaint it's alleging is that Mastrakha lacks confidence in animal-raising imagery.

[00:27:54] Speaker 05:
And the reason these allegations are insufficient is because the complaint does not allege that Mestraco is certain or even likely to encounter this kind of imagery going forward.

[00:28:03] Speaker 05:
The complaint does not allege that she has any desire to purchase this particular product again.

[00:28:07] Speaker 05:
It doesn't allege that there are other kinds of products out there that have animal raising imagery, much less that there are enough of these products on the market that the risk of encountering them

[00:28:16] Speaker 05:
Having some kind of confusion is substantial.

[00:28:19] Speaker 06:
So about that, you've heard a couple of exchanges about whether there are such other products.

[00:28:24] Speaker 06:
And I think I understand your argument that regardless of whether there are aren't.

[00:28:29] Speaker 06:
there's nothing in the complaint that suggests that there are.

[00:28:31] Speaker 06:
And if there's nothing in the complaints that suggests that there are, then we will get the fork under the complaint.

[00:28:35] Speaker 06:
That kind of consumer confusion injury isn't made out.

[00:28:38] Speaker 06:
But what's wrong with their response that, well, that allegation be easy to take.

[00:28:44] Speaker 06:
There in fact are such products.

[00:28:47] Speaker 06:
All we would need is just an opportunity to amend the complaint to add one allegation that

[00:28:52] Speaker 06:
makes that out, makes that out, and it's actually true that that exists in the marketplace.

[00:28:57] Speaker 05:
Sure.

[00:28:57] Speaker 05:
So a couple of responses.

[00:28:58] Speaker 05:
First, I mean, we're not disputing that it's possible that there are these products, that there are other products out there.

[00:29:04] Speaker 05:
The standard to get injunctive relief here is that the harm is certainly impending.

[00:29:08] Speaker 05:
So there have to be

[00:29:09] Speaker 05:
enough of these products out there that there's actually a substantial risk.

[00:29:11] Speaker 05:
But in terms of what we can add to the complaint, what they can add to the complaint, what they can't.

[00:29:15] Speaker 05:
I mean, the district court here dismissed the allegations without prejudice.

[00:29:18] Speaker 05:
So they're free to file this claim again if they want to.

[00:29:20] Speaker 05:
I mean, I will say that they've already amended their complaint once.

[00:29:25] Speaker 05:
But whether they are given leave to amend again or whether they file new

[00:29:28] Speaker 05:
Also with these allegations, it makes no difference to us.

[00:29:31] Speaker 06:
So if it doesn't make any difference to you, then you wouldn't have a problem with them being given leave to amend because they could just as easily file a new complaint as you point out of us without prejudice.

[00:29:41] Speaker 06:
Right.

[00:29:41] Speaker 06:
It wouldn't make a difference.

[00:29:42] Speaker 05:
From your perspective, it doesn't matter.

[00:29:43] Speaker 05:
It would not.

[00:29:44] Speaker 05:
Let me just point out a few issues here with the allegations in this complaint.

[00:29:50] Speaker 05:
One other problem here is that the complaint doesn't allege what kind of imagery Mestraco would find confusing on other product labels going forward.

[00:29:57] Speaker 05:
I mean, in this particular case, the complaint alleges that Mestraco was confused by imagery of chickens on a farm in conjunction with some written text saying cage-free.

[00:30:06] Speaker 05:
But it doesn't allege that she would have misinterpreted the label in the absence of that written text.

[00:30:12] Speaker 05:
And so going forward, whether she's going to misinterpret a label is going to depend a lot on what the label looks like.

[00:30:18] Speaker 05:
It will depend on what the images look like.

[00:30:20] Speaker 05:
It will depend on a number of contextual clues on the label itself.

[00:30:25] Speaker 05:
So I think that just goes to show that the

[00:30:27] Speaker 05:
The image here, the injury here, this being alleged, is pretty speculative here, because we're talking about hypothetical products that we don't know exist.

[00:30:36] Speaker 05:
And let me also just add that even if Mestraco was likely to encounter a product that has animal-raising imagery on it, a consumer's lack of confidence in the imagery itself is not by itself a concrete injury.

[00:30:51] Speaker 05:
That's not what the Ninth Circuit said in Davidson.

[00:30:54] Speaker 05:
What the 9th circus said in Davidson is that a lack of confidence in a label can lead to an injury under certain circumstances.

[00:31:01] Speaker 05:
If, for example, a consumer refrains from buying a desired product because they can't trust the representation or

[00:31:09] Speaker 05:
if the consumer buys a product in reliance on a representation.

[00:31:13] Speaker 05:
That turns out to be false, in which case, they're duped.

[00:31:15] Speaker 05:
But if a consumer lacks confidence in a label, buys the product, and it conforms to their expectations, they haven't suffered a concrete injury.

[00:31:25] Speaker 05:
So I think that's another potential flaw here in the standing argument that my colleagues are raising here.

[00:31:32] Speaker 04:
But you say that it can lead to concrete injury because

[00:31:36] Speaker 04:
consumer might refrain from purchasing with respect to count one she's alleged or they've alleged that that member has refrained from buying the Purdue product and why and they claim that that's enough harm.

[00:31:50] Speaker 04:
What's your position on why that's not enough harm?

[00:31:52] Speaker 05:
Well, so I don't think that the complaint alleges, in terms of her behavior going forward, that doesn't say anything about Purdue.

[00:31:59] Speaker 04:
I mean, I think you can infer that she has to buy chicken, even if it's not perfect by her own standards.

[00:32:06] Speaker 04:
And it may be that sometimes Purdue, for other reasons, is going to be the preferable choice.

[00:32:11] Speaker 04:
But she's still subjected to this.

[00:32:14] Speaker 04:
I mean, what about the notion that she's also probably paying a premium for that product?

[00:32:22] Speaker 04:
Unwarranted premium for that product.

[00:32:25] Speaker 04:
It's made to look like a more animal-friendly product than it is.

[00:32:31] Speaker 05:
Well, I think, I mean, the complaint doesn't contain any allegations about what she's paying for these products or if she's paying premium or anything like that.

[00:32:38] Speaker 05:
But I would say in terms of whether she's going to refrain from buying premium in the future, I mean, part of what makes this case different from Davidson and some of the other cases that the plaintiff relies on is that

[00:32:49] Speaker 05:
The plaintiff here isn't alleging any desire to buy a particular product.

[00:32:53] Speaker 05:
He doesn't care if she buys Purdue or not.

[00:32:54] Speaker 05:
She just alleges that she wants chicken breast products for her dog.

[00:32:58] Speaker 05:
So whether she is ultimately deprived of the opportunity to buy Purdue again doesn't really seem like a concrete injury in the same way that it was in Davidson.

[00:33:06] Speaker 05:
Because whether she buys Purdue or something else, I think, doesn't make a particular difference to her.

[00:33:11] Speaker 04:
It didn't to the plaintiffs in Davidson either, did it?

[00:33:14] Speaker 05:
I'm sorry?

[00:33:14] Speaker 04:
It didn't matter to the plaintiffs in Davidson either.

[00:33:17] Speaker 04:
They were also looking

[00:33:17] Speaker 04:
for a type of product, a flushable.

[00:33:20] Speaker 04:
And they were unable to find it.

[00:33:23] Speaker 05:
I think the plaintiff and Davidson alleged that they wanted to buy the particular defendant's product.

[00:33:29] Speaker 05:
And because it was flushable, that they would buy the product again if given the opportunity.

[00:33:34] Speaker 05:
And that the consumer plaintiff was frequently in a position where she would be confronted that product again.

[00:33:41] Speaker 04:
So too here.

[00:33:43] Speaker 04:
going to the supermarket, looking for a product that she feels compelled to buy, even if it's non-ideal.

[00:33:49] Speaker 04:
And here, in a way, it's stronger than Davidson.

[00:33:53] Speaker 04:
And one of the weak points of Davidson is why should she think that suddenly this, why should the consumer in that case think that the product, the company had made the product conforming?

[00:34:03] Speaker 04:
Whereas here, as Mr. Wells has pointed out, Purdue has made assertions that are in the complaint that they are trying

[00:34:13] Speaker 04:
to conform more to the implicit message of the graphic.

[00:34:18] Speaker 04:
So why isn't the same harm here that even though on the one hand she's been disabused of, she knows that the claim was misleading at least at one point, why isn't it fair for her to think, well, it might no longer

[00:34:37] Speaker 05:
So I think a couple of responses.

[00:34:38] Speaker 05:
First, I think I would take issue with the premise that this case is as strong as Davidson.

[00:34:42] Speaker 05:
There are a couple of critical allegations in Davidson that were essential to the Ninth Circus holding that were not made here.

[00:34:48] Speaker 05:
Number one, as I mentioned at the outset, the plaintiff is not alleged that she wants to buy Purdue products again.

[00:34:52] Speaker 05:
Number two, unlike in Davidson, the plaintiff is not alleging here that she'll encounter this kind of product

[00:35:01] Speaker 05:
when she goes to the grocery store, or that there's any, the complainant applies no factual basis to think that she would encounter this product or any other products that have the potential to confuse her.

[00:35:10] Speaker 05:
And unlike in Davidson, she does have a way of determining whether the product conforms to her consumer preferences.

[00:35:16] Speaker 05:
She can read the written text on the label.

[00:35:18] Speaker 04:
That is a tough argument.

[00:35:20] Speaker 04:
I mean, the FSIS is statutorily required to review the graphics as well as other things.

[00:35:27] Speaker 04:
That's right.

[00:35:28] Speaker 04:
We have this case span versus colonial village that has to do with depictions in real estate ads and their depictions of only white people at a complex and so the

[00:35:40] Speaker 04:
you know, the potential purchaser is deterred.

[00:35:44] Speaker 04:
And you can't say, well, you know, just avoid those products.

[00:35:47] Speaker 04:
I mean, that can't be right to say that she should just avoid a product that has an unreviewed misleading label and only go with things with the tax.

[00:35:57] Speaker 05:
So that's not exactly what we're saying here.

[00:35:59] Speaker 05:
I think what the complaint is alleging is that there are new products that do conform to Mastroco's consumer preferences because they are labeled organic or

[00:36:09] Speaker 05:
free range.

[00:36:09] Speaker 05:
That means that the chickens were raised outdoors as Ms.

[00:36:13] Speaker 05:
Schrock wants.

[00:36:14] Speaker 05:
So if she doesn't have to avoid a product, if she wants to buy the Purdue chicken products, she can just buy the ones that say organic or free range outside.

[00:36:21] Speaker 05:
But I would also just note that this is not a particular sub-argument.

[00:36:25] Speaker 05:
The court doesn't really need to go there.

[00:36:27] Speaker 05:
I mean, it's enough that the allegations here are too speculative and that the asserted injury is

[00:36:33] Speaker 05:
not concrete because she's not alleging any sort of downstream consequences that flow from her reported lack of confidence.

[00:36:40] Speaker 06:
I'm not sure I understand what speculative about it if put aside the text response for now that she could just look at the text.

[00:36:48] Speaker 06:
But you said even independent of that argument is still speculative.

[00:36:51] Speaker 06:
If there's an allegation in there, suppose the complaint is to add an allegation that says there's a

[00:36:56] Speaker 06:
a multitude of chicken products out there at the grocery store that show chickens in graphics that look like they're outside.

[00:37:07] Speaker 06:
So they make me think that they're being raised in the way that I think is appropriate.

[00:37:12] Speaker 06:
And so I'm tempted to buy them.

[00:37:14] Speaker 06:
But the government just isn't policing those graphics to know whether that's accurate or not.

[00:37:20] Speaker 06:
So I just have decisional paralysis.

[00:37:22] Speaker 06:
Yes, I'm going to buy something because my dog needs chickens.

[00:37:25] Speaker 06:
But I'm buying them without knowing whether it's actually true that what the graphic tells me about the way they're being raised is, in fact, the case.

[00:37:36] Speaker 06:
And if the government did its job, then I wouldn't face that tension and uncertainty and anxiety that I now face.

[00:37:43] Speaker 06:
What's wrong?

[00:37:43] Speaker 06:
Why isn't that?

[00:37:45] Speaker 06:
perfectly OK as an injury.

[00:37:46] Speaker 05:
So I see that I'm out of time.

[00:37:47] Speaker 05:
Can I answer?

[00:37:48] Speaker 05:
So it's still speculative, because as I noted at the outset, the ALDF is not alleging what kind of imagery she would find confusing in the first place.

[00:37:57] Speaker 05:
It's not even clear from the complaint that she would have misinterpreted the animal racing imagery in the absence of the written text cage-free.

[00:38:03] Speaker 05:
So whether there are other products out there that have chickens on a farm, that doesn't necessarily mean that she's going to be confused about the product.

[00:38:11] Speaker 05:
imagery that's very realistic.

[00:38:12] Speaker 05:
It could be.

[00:38:12] Speaker 05:
It's not.

[00:38:13] Speaker 05:
I mean, it's possible that she would encounter product that confuses her, but not likely based on the allegations.

[00:38:19] Speaker 04:
What if we disagree and we're willing to read the complaint a little bit more liberally than your suggestion and the cage free is an aspect, but really she's seeing this picture and the simple inference that she draws is these chickens are raised outside and indeed it may be that she's looking for something more than free range.

[00:38:42] Speaker 04:
because maybe free range is sort of, you know, a very limited amount of roaming, whereas this picture shows, you know, old school chickens running around freely.

[00:38:53] Speaker 04:
It may be that one of the, I mean, as I read her complaint, one of the points that she's making is that a graphic can make claims that don't fit in to one of the standardized and scrutinized claims like organic.

[00:39:10] Speaker 04:
or free range, there's suggestions that she's saying free Rome is something broader than free range.

[00:39:17] Speaker 04:
And it's not a defined term textually, but it's a projection from this image.

[00:39:24] Speaker 04:
And to that extent, it seems like, first of all, it underscores the importance of potentially reviewing the graphic.

[00:39:31] Speaker 04:
And second of all, it's in tension with the notion that she can satisfy herself by

[00:39:40] Speaker 04:
limiting her review to the taps?

[00:39:42] Speaker 05:
Yeah, so a couple responses.

[00:39:44] Speaker 05:
First, I mean, I don't want to get out in front of my skis on this, but I mean, we dispute that the government does not review the graphics.

[00:39:50] Speaker 05:
But that aside, we dispute that the government does not review the graphics as alleged.

[00:39:54] Speaker 05:
Oh, you do dispute that?

[00:39:55] Speaker 05:
Yes.

[00:39:56] Speaker 05:
I mean, the inspection services regulations require it.

[00:39:58] Speaker 05:
I mean, we haven't gotten to that aspect of the litigation.

[00:40:01] Speaker 05:
We're just in the pleading.

[00:40:01] Speaker 05:
So I'm assuming for the sake of this field that the allegations might are correct.

[00:40:06] Speaker 05:
Getting to your question, even if we were to construe the complaint liberally, as you were saying.

[00:40:10] Speaker 05:
And even if we add the allegations, or to amend the claim, add some of the allegations that Judge Srinivasan was suggesting, it still would not be enough because the plaintiff is not alleging any concrete injury.

[00:40:21] Speaker 05:
She's not alleging that she's going to refrain from buying a product because she doesn't know whether it was raised outdoors or not.

[00:40:28] Speaker 05:
That's not what the complaint says.

[00:40:29] Speaker 05:
It just says that going forward, she feels compelled to buy chicken breast products for her dog.

[00:40:34] Speaker 05:
It sounds like she'll buy the products no matter what.

[00:40:36] Speaker 05:
I mean, nothing in the complaint gives rise.

[00:40:38] Speaker 05:
It supports the inference that this is affecting

[00:40:40] Speaker 05:
decision-making process in any way.

[00:40:42] Speaker 04:
That doesn't seem quite fair because she's going to be influenced in which product to choose.

[00:40:46] Speaker 04:
Something that tends to show sunlight and valleys with chickens out of doors versus something that's just text and looks quite generic and she can assume the grimmest of

[00:40:59] Speaker 04:
of circumstances that, you know, she's making choices in a market with lots of different options.

[00:41:04] Speaker 04:
And she's saying this imagery is misleading.

[00:41:09] Speaker 04:
And the fact that it's not being scrutinized for that, at least as she's alleging.

[00:41:15] Speaker 05:
I mean, I think we are at the point where we're potentially adding some things into the complaint that aren't there and maybe construing it a little bit beyond what the plaintiffs are saying here.

[00:41:25] Speaker 05:
At the end of the day, the complaint really supplies no factual basis to think that she's going to encounter any product like this Purdue product that has animal raising.

[00:41:34] Speaker 06:
There's just no factual basis.

[00:41:36] Speaker 06:
But if we assume that that allegation were added, I'm still not quite getting it.

[00:41:39] Speaker 06:
So suppose that we're only talking about graphics, and we're only talking about confusion from graphics.

[00:41:44] Speaker 06:
And her point is, and just imagine this complaint exists, and we can talk about whether this, in fact, is commensurate with what's in the complaint.

[00:41:50] Speaker 06:
But let's just imagine the complaint that does say this.

[00:41:53] Speaker 06:
I want to be sure when I buy a product that the chickens were allowed to go outside.

[00:42:00] Speaker 06:
And the way I make sure of that is I look at the graphics.

[00:42:05] Speaker 06:
And the graphics indicate that the chickens were allowed to go outside, and therefore I'm feeling good about it.

[00:42:09] Speaker 06:
If I don't have any certainty that the graphics are accurate,

[00:42:13] Speaker 06:
then I'm not certain about whether they, in fact, are allowed to go outside.

[00:42:17] Speaker 06:
That causes me some angst because I don't know that the chickens are raised in a way that I think is OK.

[00:42:23] Speaker 06:
If the government did a job, I would be sure of that.

[00:42:25] Speaker 06:
That's my injury.

[00:42:26] Speaker 06:
I'm either unsure or I'm sure.

[00:42:29] Speaker 06:
And I'd rather be sure than unsure because I really care about this.

[00:42:32] Speaker 06:
It really matters to me.

[00:42:33] Speaker 06:
Is that not a cognizant?

[00:42:34] Speaker 05:
That is not a concrete injury under article three.

[00:42:37] Speaker 05:
And I don't think that Davidson or any of the cases that the plaintiff relies on says that that is a concrete injury in and of itself.

[00:42:42] Speaker 05:
I think it would be different if the plaintiff is alleging that she really wanted to buy pretty or another particular product and she is refraining from doing so, or if she ends up buying a hypothetical product.

[00:42:51] Speaker 05:
in reliance on the imagery where it lacks confidence and it turns out not to conform to our expectations.

[00:42:56] Speaker 05:
That's another possibility of a concrete injury.

[00:42:58] Speaker 05:
But the angst that you're referring to by itself, that's just not a concrete injury and the plaintiffs have not identified any case that says that it would.

[00:43:05] Speaker 03:
Why not?

[00:43:06] Speaker 03:
It seems like it's sort of in between the traditional injury of a defrauded plaintiff.

[00:43:16] Speaker 03:
If you got certain information, you would be misled.

[00:43:21] Speaker 03:
And let me just put something on the table.

[00:43:23] Speaker 03:
It's sort of in between that and the informational injury sort of situation where the plaintiff says, I want more information.

[00:43:33] Speaker 03:
So like to get the misleading information or I want some truthful information.

[00:43:40] Speaker 03:
And this is a little bit of both.

[00:43:42] Speaker 05:
So I think a couple of responses, Judge Katz.

[00:43:44] Speaker 05:
First, I mean, the Supreme Court has said in transition that an informational injury unaccompanied by adverse effects is not enough for article 3.

[00:43:50] Speaker 05:
And in terms of traditionally what kind of injuries consumers have misled or allegedly misled, very often it's the case courts have held that consumers can have standing when they will rely on a misrepresentation on a label to their detriment, purchase the item and get duped.

[00:44:05] Speaker 05:
So there is some kind of like concrete injury that's actually happening here.

[00:44:09] Speaker 05:
Again, I don't think

[00:44:10] Speaker 05:
I haven't seen a case that is really suggesting that just the angst that Mr. Acco literally feels it would be sufficient by itself.

[00:44:17] Speaker 06:
In the real world, it just seems like she is worse off because injury means are you worse off and you are worse off if you buy a product, if you're compelled to buy a product because your dog needs to be fed.

[00:44:28] Speaker 06:
You are worse off if you don't know whether the product is commensurate with your values than if you do know that it is.

[00:44:35] Speaker 05:
But if the product actually is commensurate with her values, then she's not worse off.

[00:44:38] Speaker 05:
In other words, like if she ends up buying a competitor's product, lacking confidence in whether the chickens are raised outdoors and the chickens were raised outdoors, I don't think you can say that she's really worse off in any meaningful defense.

[00:44:51] Speaker 05:
And again, I think that's why it sort of invites some speculation.

[00:44:53] Speaker 05:
as to her sort of injury in connection with our products that we don't know whether they exist and whether they accurately reflect the chickens raising conditions.

[00:45:01] Speaker 06:
But she doesn't know whether the product, I mean, yes, I think if you assume that the product was accurate, the label was accurate, the image was accurate, then it may turn out that her fears are not well founded.

[00:45:17] Speaker 05:
But the point is she doesn't know.

[00:45:19] Speaker 05:
The point is she doesn't know, but as long as there's no sort of concrete effect associated with her, it's not it.

[00:45:26] Speaker 03:
So back to TransUnion for a second.

[00:45:28] Speaker 03:
If you don't have a statutory right to specific information, informational injury is not concrete absent downstream effect.

[00:45:38] Speaker 03:
But here, this isn't the classic non-standing

[00:45:45] Speaker 03:
situation where the plaintiff wants information because he or she is upset with how the executive branch is running itself.

[00:45:58] Speaker 03:
She wants information to inform a purchasing decision.

[00:46:02] Speaker 03:
And why isn't that the downstream

[00:46:07] Speaker 05:
Well, because there's no allegation that she won't.

[00:46:10] Speaker 05:
There's not a plausible allegation that she won't get the information going forward, I think.

[00:46:14] Speaker 04:
Well, the allegation is, and you've said that in fact, this isn't the government's position, but in the letter that is referenced in the complaint, she understands the government to take the position that they don't review imagery on labels for the

[00:46:34] Speaker 04:
claims that they may implicitly convey.

[00:46:37] Speaker 04:
And if that's true, then she does have a reasonable basis for thinking that she can't rely on imagery.

[00:46:48] Speaker 05:
But it doesn't plausibly allege that she'll be in a situation where she can't rely on the imagery, because we don't have any basis from the complaint to think that she's going to.

[00:46:56] Speaker 05:
But the complaint is sort of assuming that when Ms.

[00:46:58] Speaker 05:
Misraga goes to their grocery store, that she's going to be surrounded by a lot of chicken products with cartoons of chickens on farms, and that she won't have any basis for distinguishing between them.

[00:47:07] Speaker 05:
But there is no basis in the complaint for getting there.

[00:47:10] Speaker 04:
So it's the lack of allegations of imagery on competitor products labeled.

[00:47:17] Speaker 05:
among other things, that shows that there is no substantial risk of her actually having this problem when she goes to the grocery store.

[00:47:22] Speaker 04:
I mean, it's very possible that she could go to the grocery store, and there are no chicken products that have animal-raising imagery on them, in which case... Right, so that's... It's helpful to bring it down that one level of concreteness and say that it's the lack of allegations that there are other labels with pictures on them.

[00:47:40] Speaker 04:
What about the economic argument that I did not see raised in the...

[00:47:46] Speaker 04:
I guess I have two sort of related questions.

[00:47:48] Speaker 04:
And really the broader question is, you know, a lot of the cases say what you also argue, which is, you know, and once she's, the scales have fallen from her eyes and she knows that, you know, bracketing whether it's actually misleading, but she knows that the label is in her understanding misleading, then she lacks standing

[00:48:08] Speaker 04:
going forward, at least with respect to that product, because she's no longer misled.

[00:48:13] Speaker 04:
There's something very odd about a standing doctrine that deprives people who are subjected to deception from challenging the reason that that deception might be ongoing.

[00:48:25] Speaker 04:
And I guess my broad question is, what's your response to that?

[00:48:30] Speaker 04:
And my narrow question is, do you have a response to the economic injury

[00:48:36] Speaker 04:
questions that I was posing to Mr. Waltz.

[00:48:39] Speaker 04:
Why can't we assume, as a matter of basic economic logic, that to the extent that these Purdue Fresh labels convey an impression that these chickens are raised outside, people are paying an unearned

[00:48:55] Speaker 04:
premium or this product, including potentially this plaintiff going forward, because she may know that it's misleading, but others don't.

[00:49:03] Speaker 04:
I think it's a lot of questions.

[00:49:05] Speaker 04:
I know.

[00:49:05] Speaker 05:
Yeah.

[00:49:06] Speaker 05:
I mean, let me sort of start with I think the first question you asked in terms of

[00:49:11] Speaker 05:
We very much disagree with the premise of the argument that my friend on the other side is making, that if Ms.

[00:49:17] Speaker 05:
Mishrako does not have standing, then no consumer would have standing.

[00:49:20] Speaker 05:
We are not saying that there are no set of facts under which a consumer could potentially have standing to seek injunctive relief here.

[00:49:26] Speaker 05:
What we're saying is that even under the cases of the plaintiff's sites, the allegations here are just woefully short.

[00:49:32] Speaker 04:
And what would be the kind of, I mean, partly just thinking about whether this makes any sense, what would be the kind of situation in which

[00:49:41] Speaker 04:
there could be, let's say for purposes of argument that the government isn't reviewing any graphic imagery and somebody wants to bring a case to trigger a ruling on whether they need to, how would that be teed up?

[00:49:56] Speaker 05:
Well, I think even the allegations in Davidson could provide at least a benchmark for what could conceivably get you over

[00:50:06] Speaker 05:
But even in that case, the Ninth Circuit held that it was a very close question.

[00:50:10] Speaker 05:
And so allegations that are similar to Davidson maybe could.

[00:50:15] Speaker 05:
The plaintiff is alleging facts to show that she is likely to encounter the product again, that she has no way of knowing whether the product conforms to her expectations or not, and that she would suffer some kind of concrete injury from either not buying the product as she wants to or buying it.

[00:50:30] Speaker 05:
And it turns out to be false.

[00:50:32] Speaker 05:
I think those are allegations that maybe could get you there.

[00:50:35] Speaker 05:
But again, the complaint here doesn't even get close to that.

[00:50:39] Speaker 05:
So I think it would be enough to affirm just for this court to say, even if Davidson were to apply, the allegations don't come close to there.

[00:50:47] Speaker 05:
And there's no need to issue any kind of broad ruling that would categorically shut the door on consumers.

[00:50:53] Speaker 05:
That's not what we're asking for.

[00:50:54] Speaker 05:
I think it's just the allegations of this complaint just do not come up to the level Davidson or any other cases.

[00:51:00] Speaker 06:
Can I get back to this question about the consumer confusion rationale?

[00:51:05] Speaker 06:
Let's suppose that there's a complaint that adds the allegations that we were just talking about that you say are missing, which is that there are, in fact, other products out there.

[00:51:11] Speaker 06:
that contain graphics that indicate the chickens are outside.

[00:51:15] Speaker 06:
And the ostensible lack of review of those graphics gives me pause, because I can't look at these various labels and make an informed decision.

[00:51:23] Speaker 06:
And you're saying that that's missing.

[00:51:25] Speaker 06:
But if we say that that's there, or that they were allowed to amend the complaint to put that there, then you're saying that still wouldn't be enough, because that kind of injury isn't an Article III injury.

[00:51:34] Speaker 06:
So if that's true, then there's a lot of people who care about labels on food to make sure that the way the food is prepared is consistent with their faith.

[00:51:43] Speaker 06:
And so if somebody says, I need to eat, so I'm going to buy food.

[00:51:48] Speaker 06:
So you could just take it as a given that I'm not going to starve myself.

[00:51:51] Speaker 06:
I'm going to actually buy food at the grocery store.

[00:51:53] Speaker 06:
I'm looking for the particular label on there that has the K with the circle around it.

[00:51:58] Speaker 06:
And I want to make sure that it's consistent with my faith.

[00:52:02] Speaker 06:
The government is supposed to review that.

[00:52:04] Speaker 06:
The government's just not.

[00:52:06] Speaker 06:
And so I'm going to buy the products.

[00:52:08] Speaker 06:
And I've got a lot of anxiety because I don't know that the products, in fact, are prepared in a way that's consistent with my faith.

[00:52:15] Speaker 06:
If the government did its job, I would know that.

[00:52:18] Speaker 06:
You're saying that that's not an Article III injury.

[00:52:20] Speaker 05:
So I think if the consumer in your hypothetical wants to buy a product that is making certain representations about

[00:52:30] Speaker 05:
whether it conforms to their religious preferences or not.

[00:52:32] Speaker 05:
And they say, I really want to buy this product.

[00:52:34] Speaker 05:
I'm just not going to do it because I can't trust it.

[00:52:36] Speaker 06:
No, they're not saying I'm not going to do it.

[00:52:38] Speaker 06:
They're saying, I'm going to buy products.

[00:52:41] Speaker 06:
And they all contain, I'm only going to buy products that's contained as label.

[00:52:45] Speaker 06:
But I can't be sure that the label, in fact, is true.

[00:52:49] Speaker 06:
Because somebody could just slap the label on there, and in fact, it's prepared in a non

[00:52:54] Speaker 05:
And if they buy the product and it turns out that the label is false, that is potentially an injury under Davidson.

[00:53:01] Speaker 05:
If they buy the product and it turns out that the product does conform,

[00:53:07] Speaker 05:
their religious preferences.

[00:53:08] Speaker 05:
And they have been.

[00:53:08] Speaker 05:
I take the point.

[00:53:09] Speaker 06:
I totally accept the point that you'd have a more sure, more consistent, more traditional concrete injury if you, in fact, bought a product and it turned out to be misleading, as she did with the Purdue product.

[00:53:22] Speaker 06:
And then there's the question of whether that's the basis of a forward-looking claim.

[00:53:25] Speaker 06:
What I'm saying is, let's just say that that allegation's not there because she just doesn't know.

[00:53:30] Speaker 06:
The consumer just doesn't know if it's, in fact, consistent with the label.

[00:53:35] Speaker 06:
But their faith requires them to only eat products, eat food that's prepared in a certain way.

[00:53:42] Speaker 06:
And so the injury that she's claiming is it's the lack of knowledge about that that's giving me anxiety.

[00:53:47] Speaker 06:
I don't know whether the food is prepared in a way that's consistent with my religious beliefs.

[00:53:52] Speaker 06:
If the government did the job, I would.

[00:53:54] Speaker 06:
And I'm going to keep buying food products because I need to feed myself.

[00:53:58] Speaker 06:
But I'd like to do it in a way that gives me certainty that, in fact, it's being prepared in a way that's consistent.

[00:54:04] Speaker 06:
consistent with my faith.

[00:54:05] Speaker 05:
I have not seen a case that the other side has cited that would suggest that that full amount of angst and uncertainty by itself would be an injury.

[00:54:13] Speaker 05:
But at the end of the day, I don't think the court needs to get there for a number of reasons, because we are making a lot of assumptions about what allegations are hearing.

[00:54:19] Speaker 05:
It's not.

[00:54:20] Speaker 05:
I would concede that would be a trickier set of facts.

[00:54:23] Speaker 05:
But again, I don't think that the courts have recognized that kind of injury just based on how that kind of uncertainty or angst by itself isn't a real injury.

[00:54:34] Speaker 03:
going to seem like a merits question, but I'll try to back into justiciability.

[00:54:42] Speaker 03:
Why isn't the government reviewing this cartoon or graphic, whatever it is?

[00:54:49] Speaker 03:
The statute requires review of written, printed or graphic matter.

[00:54:54] Speaker 03:
This would seem to be a graphic.

[00:54:57] Speaker 05:
So I'll say what I'll respond in the same way that I did to Judge Pillard earlier, which is that I don't want to get ahead of my fees on this, because given where we are on the pleadings, again, we dispute the central allegation that's here.

[00:55:10] Speaker 05:
I mean, we understand that our own applicable regulations require us to review imagery, and we dispute that or not.

[00:55:17] Speaker 03:
Yeah, that's fair.

[00:55:19] Speaker 03:
But I mean, the harder part of the case for you is,

[00:55:28] Speaker 03:
labels by other manufacturers, right?

[00:55:31] Speaker 03:
And one reason we might not want to get into that is if there's more nuance in the question when something that looks like a graphic may or may not be and

[00:55:54] Speaker 03:
thinking your friend on the other side says, well, issue an order, issue an order that the government review graphics.

[00:56:02] Speaker 03:
I mean, if that's a discrete, clean, well presented legal question, the reasons we might be comfortable doing that, considering an order like that in this case, it's less troubling than if

[00:56:23] Speaker 03:
Different pictures of other manufacturers that aren't before us just raise a lot of fact-intensive questions.

[00:56:31] Speaker 05:
I think there are a lot of fact-intensive questions here.

[00:56:33] Speaker 03:
I don't want to be out here making representations.

[00:56:36] Speaker 03:
Can you give me a little bit of a sense of when it is or isn't graphic?

[00:56:42] Speaker 03:
Give you a sense of why we shouldn't go beyond the one picture that's before us.

[00:56:48] Speaker 05:
Sorry, are you asking whether the particular cartoon in this case is a graphic?

[00:56:54] Speaker 03:
Yeah, or why might this one not be a graphic?

[00:57:01] Speaker 03:
And the allegation is you're not reviewing it.

[00:57:04] Speaker 05:
I understand.

[00:57:05] Speaker 05:
I mean, I want to be careful not to make any kind of representations about how exactly

[00:57:10] Speaker 05:
the agency is reviewing particular graphics in case we're not there.

[00:57:13] Speaker 05:
Is there anything you can say?

[00:57:15] Speaker 05:
Well, I think in some cases, just when there are graphics in a label, it's not necessarily making a representation.

[00:57:22] Speaker 05:
It can just be marketing puffery or something like that.

[00:57:24] Speaker 05:
It's not necessarily making a claim about what the product is or is not, anything about the product.

[00:57:32] Speaker 05:
But I don't want to say anything more specific beyond that.

[00:57:36] Speaker 05:
I appreciate it.

[00:57:36] Speaker 04:
I wanted to give you a chance, if you had anything to add, to respond to the tail end of my set of questions about how one gets standing, which was about the sort of basic economic logic that if this graphic communicates a free roam, non-textual, even better than the textual categories, it could be commending

[00:58:05] Speaker 04:
it would stand to reason that it commands a higher price than Purdue's other than fresh chicken breasts.

[00:58:15] Speaker 04:
Why is that not a loan enough even by a consumer who now knows that it's not free roam because others might be looking at this and willing to pay a premium and therefore she is harmed by that artificially elevated market price?

[00:58:33] Speaker 05:
I mean, I don't know enough about the market prices of organic chicken or anything else, just in part because it's not alleged in the complaint.

[00:58:40] Speaker 05:
And so I don't want to make any.

[00:58:43] Speaker 05:
And I think at the end of the day, she hasn't really alleged.

[00:58:45] Speaker 05:
I know this is not a satisfying response to your honest question.

[00:58:48] Speaker 05:
But the complaint doesn't really allege anything about paying a premium or not.

[00:58:51] Speaker 04:
And so I think it would seem like it would be traditional injury under TransUnion or any.

[00:58:56] Speaker 05:
If she paid a premium.

[00:58:59] Speaker 04:
paid a premium because the product presented itself as something better than it is.

[00:59:05] Speaker 04:
For example, if you took DC tap water and bottled it in a bottle that had pictures of a verdant rural spring and marketed it at a high price compared to regular tap water in a bottle.

[00:59:24] Speaker 05:
Yeah, I mean, I see how that

[00:59:29] Speaker 05:
I mean, it's possible that that could present an injury to seek damage.

[00:59:34] Speaker 05:
It's not necessarily injunctive.

[00:59:36] Speaker 05:
It would depend on the allegations here.

[00:59:38] Speaker 05:
But again, the complaint is not alleging anything about the price of Purdue versus any other products.

[00:59:43] Speaker 05:
And so I don't think that would provide a basis for reversing the decision below.

[00:59:51] Speaker 06:
Thank you, Mr. White.

[00:59:53] Speaker 06:
Mr. Walts will give you two minutes for rebuttal.

[01:00:03] Speaker 02:
Thank you.

[01:00:04] Speaker 02:
I'd like to just first start with a response, I think, to the hypothetical you raised, Chief Judge Srinivasan, about if Ms.

[01:00:16] Speaker 02:
Strachow or if someone just does not know whether a label or an advertising is accurate or inaccurate, whether that's injury.

[01:00:27] Speaker 02:
I heard the answer was no, that isn't an injury sufficient for standing.

[01:00:33] Speaker 02:
Sorry, TransUnion.

[01:00:34] Speaker 02:
TransUnion, I think, says that looking to Congress's statutory scheme can be helpful, not dispositive, but helpful in identifying what's a legally cognizable interest.

[01:00:47] Speaker 02:
And the purpose of the PPIA is to protect the health and welfare of consumers from poultry products that are ensuring that they are not

[01:01:03] Speaker 02:
that they are properly labeled and packaged.

[01:01:07] Speaker 02:
So we're in a statutory scheme that seeks to protect consumer interest and accuracy of labels.

[01:01:16] Speaker 02:
I think that helps inform whether the injury is sufficient, is a legally recognizable injury.

[01:01:25] Speaker 02:
And then I also just wanted to quickly

[01:01:31] Speaker 02:
echo what Judge Pillard was saying about this odd standing doctrine we're in.

[01:01:37] Speaker 02:
We've alleged in the complaint that ALDF has 300,000 members and many other members purchase

[01:01:44] Speaker 02:
chicken products, Purdue chicken products.

[01:01:47] Speaker 02:
But one of the challenges is, should we reach out or should we to a member and ask them to be a declarant, while they may have standing because they currently do not know that the Purdue chicken they're purchasing is misleading, the minute we ask them to be a declarant and we tell them that, all of a sudden, they move their standing or they potentially lose their standing under this theory that if the

[01:02:12] Speaker 02:
If you know that the product is misleading, you'll never buy it again.

[01:02:18] Speaker 02:
And we believe that the Davidson theory of consumer confusion, which applies even more stronger here, helps us get around that really odd work of the doctor.

[01:02:33] Speaker 02:
Thank you.

[01:02:34] Speaker 06:
Thank you, counsel.

[01:02:35] Speaker 06:
Thank you to both counsel.

[01:02:36] Speaker 06:
We'll take this case under submission.