1.This Act may be cited as the
Commonsense Consumption Act of
2009
.
2.
(a)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 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)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.
3.Preservation of
separation of powers
(a)A qualified civil liability action may not be brought in
any Federal or State court.
(b)Dismissal of
pending actionsA 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)
(1)If,
in an action filed after May 7, 2007, a party files a motion asserting that
some or all claims raised in a complaint are subject to dismissal pursuant to
this Act, or notifies the court that it intends to file such a motion in a
timely manner, no person shall be required before the court’s final decision on
such motion to respond to any discovery request or otherwise provide any party
with any documents, data compilations, tangible things, testimony, admissions,
information regarding potential evidence or witnesses, or other information
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 partiesDuring 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).
(3)In any action in which a stay is entered pursuant
to paragraph (1), the court is encouraged to expedite consideration of the
motion to dismiss.
(d)In
any action that is allegedly of the type described in section 4(5) 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 for each defendant and cause of action—
(1)each element of the
cause of action and the specific facts alleged to satisfy each element of the
cause of action;
(2)the Federal and
State statutes or other laws that allegedly create the cause of action;
and
(3)the section 4(5)(B)
exception being relied upon and the specific facts that allegedly satisfy the
requirements of that exception.
(e)No provision of this Act shall be construed to
create a public or private cause of action or remedy.
4.In this Act:
(1)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)The
term manufacturer means, with respect to a qualified product, a
person who is lawfully engaged in the business of manufacturing the
product.
(3)The
term person means any individual, corporation, company,
association, firm, partnership, society, joint stock company, or any other
entity, including any governmental entity.
(4)The term qualified product—
(A)means a food (as
defined in section 201(f) of the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 321(f))); and
(B)shall not include a
dietary supplement (as defined in section 201(ff) of the Federal Food, Drug and
Cosmetic Act (21 U.S.C. 321(ff))).
(5)Qualified civil
liability action
(A)Subject to subparagraph (B), the term qualified
civil liability action—
(i)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—
(I)a
person’s accumulated acts of consumption of a qualified product; and
(II)that person’s
weight gain, obesity, or a health condition caused or associated with that
person’s weight gain or obesity; and
(ii)includes 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)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)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)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)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.