[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 908 Introduced in Senate (IS)]







109th CONGRESS
  1st Session
                                 S. 908

   To allow Congress, State legislatures, and regulatory agencies to 
   determine appropriate laws, rules, and regulations to address the 
problems of weight gain, obesity, and health conditions associated with 
                        weight gain or obesity.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 26, 2005

 Mr. McConnell introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To allow Congress, State legislatures, and regulatory agencies to 
   determine appropriate laws, rules, and regulations to address the 
problems of weight gain, obesity, and health conditions associated with 
                        weight gain or obesity.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Commonsense Consumption Act of 
2005''.

SEC. 2. FINDINGS; PURPOSE.

    (a) Findings.--Congress finds that--
            (1) the food and beverage industries are a significant part 
        of our national economy;
            (2) the activities of manufacturers and sellers of foods 
        and beverages substantially affect interstate and foreign 
        commerce;
            (3) a person's weight gain, obesity, or a health condition 
        associated with a person's weight gain or obesity is based on a 
        multitude of factors, including genetic factors and the 
        lifestyle and physical fitness decisions of individuals, such 
        that a person's weight gain, obesity, or a health condition 
        associated with a person's weight gain or obesity cannot be 
        attributed solely to the consumption of any specific food or 
        beverage; and
            (4) because fostering a culture of acceptance of personal 
        responsibility is one of the most important ways to promote a 
        healthier society, lawsuits seeking to blame individual food 
        and beverage providers for a person's weight gain, obesity, or 
        a health condition associated with a person's weight gain or 
        obesity are not only legally frivolous and economically 
        damaging, but also harmful to a healthy America.
    (b) Purpose.--The purpose of this Act is to allow Congress, State 
legislatures, and regulatory agencies to determine appropriate laws, 
rules, and regulations to address the problems of weight gain, obesity, 
and health conditions associated with weight gain or obesity.

SEC. 3. PRESERVATION OF SEPARATION OF POWERS.

    (a) In General.--A qualified civil liability action may not be 
brought in any Federal or State court.
    (b) Dismissal of Pending Actions.--A qualified civil liability 
action that is pending on the date of the enactment of this Act shall 
be dismissed immediately by the court in which the action was brought 
or is currently pending.
    (c) Discovery.--
            (1) Stay.--In any action that is allegedly of the type 
        described in section 4(5)(B) seeking to impose liability of any 
        kind based on accumulative acts of consumption of a qualified 
        product, the obligation of any party or non-party to make 
        disclosures of any kind under any applicable rule or order, or 
        to respond to discovery requests of any kind, as well as all 
        proceedings unrelated to a motion to dismiss, shall be stayed 
        prior to the time for filing a motion to dismiss and during the 
        pendency of any such motion, unless the court finds upon motion 
        of any party that a response to a particularized discovery 
        request is necessary to preserve evidence or to prevent undue 
        prejudice to that party.
            (2) Responsibility of parties.--During the pendency of any 
        stay of discovery under paragraph (1), the responsibilities of 
        the parties with regard to the treatment of all documents, data 
        compilations (including electronically recorded or stored 
        data), and tangible objects shall be governed by applicable 
        Federal or State rules of civil procedure. A party aggrieved by 
        the failure of an opposing party to comply with this paragraph 
        shall have the applicable remedies made available by such 
        applicable rules, provided that no remedy shall be afforded 
        that conflicts with the terms of paragraph (1).
    (d) Pleadings.--In any action that is allegedly of the type 
described in section 4(5)(B) seeking to impose liability of any kind 
based on accumulative acts of consumption of a qualified product, the 
complaint initiating such action shall state with particularity--
            (1) each element of the cause of action;
            (2) the Federal and State statutes or other laws that were 
        allegedly violated;
            (3) the specific facts alleged to constitute the claimed 
        violation of law; and
            (4) the specific facts alleged to have caused the claimed 
        injury.
    (e) Rule of Construction.--No provision of this Act shall be 
construed to create a public or private cause of action or remedy.

SEC. 4. DEFINITIONS.

    In this Act:
            (1) Engaged in the business.--The term ``engaged in the 
        business'' means a person who manufactures, markets, 
        distributes, advertises, or sells a qualified product in the 
        person's regular course of trade or business.
            (2) Manufacturer.--The term ``manufacturer'' means, with 
        respect to a qualified product, a person who is lawfully 
        engaged in the business of manufacturing the product.
            (3) Person.--The term ``person'' means any individual, 
        corporation, company, association, firm, partnership, society, 
        joint stock company, or any other entity, including any 
        governmental entity.
            (4) Qualified product.--The term ``qualified product'' 
        means a food (as defined in section 201(f) of the Federal Food, 
        Drug, and Cosmetic Act (21 U.S.C. 321(f))).
            (5) Qualified civil liability action.--
                    (A) In general.--Subject to subparagraph (B), the 
                term ``qualified civil liability action'' means a civil 
                action brought by any person against a manufacturer, 
                marketer, distributor, advertiser, or seller of a 
                qualified product, or a trade association, for damages, 
                penalties, declaratory judgment, injunctive or 
                declaratory relief, restitution, or other relief 
                arising out of, or related to a person's accumulated 
                acts of consumption of a qualified product and weight 
                gain, obesity, or a health condition that is associated 
                with a person's weight gain or obesity, including an 
                action brought by a person other than the person on 
                whose weight gain, obesity, or health condition the 
                action is based, and any derivative action brought by 
                or on behalf of any person or any representative, 
                spouse, parent, child, or other relative of that 
                person.
                    (B) Exception.--A qualified civil liability action 
                shall not include--
                            (i) an action based on allegations of 
                        breach of express contract or express warranty, 
                        provided that the grounds for recovery being 
                        alleged in such action are unrelated to a 
                        person's weight gain, obesity, or a health 
                        condition associated with a person's weight 
                        gain or obesity;
                            (ii) an action based on allegations that--
                                    (I) a manufacturer or seller of a 
                                qualified product knowingly violated a 
                                Federal or State statute applicable to 
                                the marketing, advertisement, or 
                                labeling of the qualified product with 
                                intent for a person to rely on that 
                                violation;
                                    (II) such person individually and 
                                justifiably relied on that violation; 
                                and
                                    (III) such reliance was the 
                                proximate cause of injury related to 
                                that person's weight gain, obesity, or 
                                a health condition associated with that 
                                person's weight gain or obesity; or
                            (iii) an action brought by the Federal 
                        Trade Commission under the Federal Trade 
                        Commission Act (15 U.S.C. 41 et seq.) or by the 
                        Federal Food and Drug Administration under the 
                        Federal Food, Drug, and Cosmetic Act (21 U.S.C. 
                        301 et seq.).
            (6) Seller.--The term ``seller'' means, with respect to a 
        qualified product, a person lawfully engaged in the business of 
        marketing, distributing, advertising, or selling a qualified 
        product.
            (7) State.--The term ``State'' includes each of the several 
        States of the United States, the District of Columbia, the 
        Commonwealth of Puerto Rico, the Virgin Islands, Guam, American 
        Samoa, and the Commonwealth of the Northern Mariana Islands, 
        and any other territory or possession of the United States, and 
        any political subdivision of any such place.
            (8) Trade association.--The term ``trade association'' 
        means any association or business organization (whether or not 
        incorporated under Federal or State law) that is not operated 
        for profit, and 2 or more members of which are manufacturers, 
        marketers, distributors, advertisers, or sellers of a qualified 
        product.
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