Congressional Record, Volume 150 Issue 30 (Wednesday, March 10, 2004)

[Congressional Record Volume 150, Number 30 (Wednesday, March 10, 2004)]
[House]
[Pages H946-H981]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

PERSONAL RESPONSIBILITY IN FOOD CONSUMPTION ACT

The SPEAKER pro tempore (Mr. Smith of Texas). Pursuant to House
Resolution 552 and rule XVIII, the Chair declares the House in the
Committee of the Whole House on the State of the Union for the
consideration of the bill, H.R. 339.

{time} 1223

In the Committee of the Whole

Accordingly, the House resolved itself into the Committee of the
Whole House on the State of the Union for the consideration of the bill
(H.R. 339) to prevent frivolous lawsuits against the manufacturers,
distributors, or sellers of food or non-alcoholic beverage products
that comply with applicable statutory and regulatory requirements, with
Mr. Culberson in the chair.
The Clerk read the title of the bill.
The CHAIRMAN. Pursuant to the rule, the bill is considered as having
been read the first time.
Under the rule, the gentleman from Wisconsin (Mr. Sensenbrenner) and
the gentleman from Virginia (Mr. Scott) each will control 30 minutes.
The Chair recognizes the gentleman from Wisconsin (Mr.
Sensenbrenner).
Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, the food industry is our Nation's largest private
sector employer, providing jobs to some 12 million Americans. Today,
that industry is threatened by an array of legal claims alleging that
it should be liable to pay damages for the overconsumption of its legal
products by others. H.R. 339, the Personal Responsibility in Food
Consumption Act, is designed to foreclose frivolous obesity-related
lawsuits against the food industry.
From June 20 to the 22nd of last year, personal injury lawyers from
across the country gathered at a conference designed to ``encourage and
support litigation against the food industry.'' Attendees were required
to sign an affidavit in which they agreed to keep the information they
learned confidential and to refrain from consulting with or working for
the food industry before December 31, 2006, apparently setting a
deadline for bringing that vital industry to its knees in a nationally
coordinated legal attack.
The hatred of some lawyers for the food industry is stark. Ralph
Nader, for example, has compared food companies to terrorists, saying
that the double cheeseburger is ``a weapon of mass destruction.''
H.R. 339 prohibits obesity or weight-gain-related claims against the
food industry, with reasonable exceptions, including those in which a
State or Federal law was broken and as a result the person gained
weight, and those in which a company violates an expressed contract or
warranty. Also, because this bill only applies to claims based on
``weight gain'' or ``obesity,'' lawsuits could go forward under the
bill, if, for example, someone gets sick from a tainted hamburger.
The bill also contains essential provisions governing the conduct of
legal proceedings. H.R. 339 includes the very same discovery provisions
designed to prevent fishing expeditions that are already a part of our
Federal securities laws. It also contains provisions that appropriately
require that a complaint set out the fact as to why the case should be
allowed to proceed.
Some trial lawyers are mounting an attack on personal responsibility

[[Page H947]]

against the advice of the Nation's leading weight-loss experts. Listen
to the insightful words of Dr. Gerard Musante, a clinical psychologist
with training at Duke University Medical Center, who has worked for
more than 30 years with thousands of obese patients. He is the founder
of Structure House, a residential weight-loss facility in Durham, North
Carolina. Dr. Musante said the following at a Senate hearing on this
legislation:
``Through working with obese patients, I have learned that the worst
thing one can do is to blame an outside force to get themselves `off
the hook,' to say it's not their fault and that they are a victim.
Congress has rightly recognized the danger of allowing Americans to
continue blaming others for the obesity epidemic. It is imperative that
we prevent lawsuits from being filed against any industry for answering
consumer demands. The fact that we are addressing the issue here today
is a step in the right direction.''
The chairman of the American Council for Fitness and Nutrition, Susan
Finn, has also written that ``if you are obese, you don't need a
lawyer; you need to see your doctor, a nutritionist and a physical
trainer. Playing the courtroom blame game won't make anyone thinner or
healthier.''
Even the Los Angeles Times, which rarely agrees with people on this
side of the aisle, has editorialized against such lawsuits, stating,
``People shouldn't get stuffed, but this line of litigation should.''
On the other hand, the lobbying organization for personal injury
attorneys, the Association of Trial Lawyers of America, which opposes
this legislation, has published a litigation instruction manual that
openly belittles jurors who believe in ``personal responsibility.''
According to that instruction manual, ``Often a juror with a high need
for personal responsibility fixates on the responsibility of the
plaintiff. According to these jurors, a plaintiff must be accountable
for his or her own conduct. The personal responsibility jurors tend to
espouse traditional family values. Often these jurors have strong
religious beliefs. The only solution is to identify these jurors and
exclude them from the jury.''
Besides threatening to erode values of personal responsibility, the
legal campaign against the food industry threatens the separation of
powers.

{time} 1230

Nationally coordinated lawsuits seek to accomplish through litigation
that which has not been achieved by legislation and the democratic
process. As one mastermind behind lawsuits against the food industry
has stated, ``If the legislatures won't legislate, then the trial
lawyers will litigate.'' In order to preserve the separation of powers
and support the principle of personal responsibility and to protect the
largest private sector employer of the United States, let us pass H.R.
339.
Mr. Chairman, at this time, I will insert in the Record
jurisdictional letters the gentleman from Texas (Chairman Barton) and I
have exchanged regarding this legislation.

Congress of the United States,

House of Representatives,

Washington, DC, March 4, 2004.
Hon. F. James Sensenbrenner, Jr.,
Chairman, Committee on the Judiciary, House of
Representatives, Washington, DC.
Dear Chairman Sensenbrenner: On January 28, 2004, the
Committee on the Judiciary ordered reported H.R. 339, the
Personal Responsibility in Food Consumption Act. As ordered
reported by your Committee, this legislation contains a
number of provisions that could fall within the jurisdiction
of the Committee on Energy and Commerce.
Specifically, I believe that H.R. 339 would impose a new
scienter requirement with respect to certain enforcement
actions taken by agencies and statutes within our
jurisdiction. This requirement could fundamentally alters how
agencies, such as the Federal Trade Commission and the Food
and Drug Administration, enforce violations of laws they
administer.
Recognizing your interest in bringing this legislation
before the House expeditiously, the Committee on Energy and
Commerce agrees not to seek a sequential referral of the
bill. In exchange, you have agreed to eliminate our
jurisdictional concerns with a floor amendment that expressly
eliminates lawsuits brought under the Federal Trade
Commission Act and the Federal Food, Drug, and Cosmetic Act
from the definition of ``qualified civil liability action''
under the legislation.
By agreeing not to seek a sequential referral, the
Committee on Energy and Commerce does not waive its
jurisdiction over the bill as your committee ordered it
reported. In addition, the Committee on Energy and Commerce
reserves its right to seek conferees on any provisions within
its jurisdiction which are considered in any House-Senate
conference.
I request that you include this letter and your response as
part of the Congressional Record during consideration of this
bill by the House.
Sincerely,
Joe Barton,
Chairman.
____

Congress of the United States,

House of Representatives,

Washington, DC, March 5, 2004.
Hon. Joe Barton,
Chairman, Committee on Energy and Commerce, U.S. House of
Representatives, Washington, DC 20515
Dear Chairman Barton: Thank you for your letter regarding
H.R. 339, the ``Personal Responsibility in Food Consumption
Act.'' I appreciate your willingness not to seek a sequential
referral of the bill.
I strongly disagree with your assertion of jurisdiction
over the bill. I do not believe that H.R. 339, as reported,
contains provisions that affect lawsuits by the Federal Trade
Commission or the Food and Drug Administration, and the
drafters did not intend such suits. Nor do I agree with the
description of the bill in the second paragraph of your
letter. However, I will include language (a copy of which is
attached) in a manager's amendment on the floor to make it
clear that such suites are not precluded or otherwise
affected by the bill. I will also include language our staffs
have discussed in the Committee's report (a copy of which is
attached) to further clarify this point.
By agreeing to this resolution of this matter, the
Committee on the Judiciary does not acknowledge that the
Committee on Energy and Commerce had jurisdiction over
provisions of the bill. In addition, the Committee on the
Judiciary does not waive any of its jurisdictional claims in
these matters.
I will include your letter and this response in the
Committee's report on H.R. 339 and in the Congressional
Record during the consideration of this bill in the House. I
appreciate your cooperation in this matter.
Sincerely,
F. James Sensenbrenner, Jr.
Chairman.
____

AMENDMENT LANGUAGE

Strike the current Sec. 4(5)(C) (the language that excludes
suits relating to adulterated foods) and insert:
``(C) Such term shall not be construed to include an action
brought under the Federal Trade Commission Act (15 U.S.C. 41
et seq.) or the Federal Food, Drug, and Cosmetic Act (21 U.S.
301 et seq.).''

REPORT LANGUAGE

After the Committee on the Judiciary's markup of H.R. 339,
the Committee on Energy and Commerce expressed concerns that
the definition of ``qualified civil liability action'' might
be construed to include actions under the Federal Trade
Commission Act or actions under the Federal Food, Drug, and
Cosmetic Act. The Committee on the Judiciary did not intend
to include such actions in the definition and did not believe
that the actions were included within its clear terms.
Notwithstanding that, both Committees agree on the policy
that such actions should not be precluded by H.R. 339. To
make this policy agreement abundantly clear, a manager's
amendment to be offered during floor consideration of H.R.
339 will strike the current language in Sec. 4(5)(C)
excluding adulteration suits and replace it with language
stating explicitly that the definition shall not be construed
to include actions under the Federal Trade Commission Act or
the Federal Food, Drug, and Cosmetic Act. The Committee on
the Judiciary believes that this language will resolve the
practical concerns of the Committee on Energy and Commerce.

Mr. Chairman, I reserve the balance of my time.
Mr. WATT. Mr. Chairman, I ask unanimous consent to substitute myself
for the gentleman from Virginia (Mr. Scott) and control the time in
opposition to the bill.
The CHAIRMAN. Is there objection to the request of the gentleman from
North Carolina?
There was no objection.
Mr. WATT. Mr. Chairman, I yield myself such time as I may consume.
I want to start by putting a couple of things in perspective. First
of all, I agree with a lot of what the gentleman from Wisconsin
(Chairman Sensenbrenner) has said about personal responsibility, so I
want to go on record as saying that. I personally like fast food on
some occasions, but I also take personal responsibility for my own
fitness. So I am not here about personal responsibility. People do have
personal responsibility. Let me put that on record.
I am here as the ranking member of the Subcommittee on Commercial and
Administrative Law, a subcommittee of the Committee on the Judiciary
and, for that reason, I have the responsibility to control the
disposition of time on this bill. And because I am standing

[[Page H948]]

in the middle of it, I suspect there will be a number of things said
that I need to clarify in advance to position myself.
First of all, I suspect that my colleagues are going to hear that I
am somehow a defender of fat, irresponsible people today. I suspect
that at some time during the course of this debate, I am going to be
characterized as the defender of irresponsible litigation. I suspect at
some point during the course of this debate today I am going to be
characterized as the defender of trial lawyers, the hated trial lawyers
that many of my Republican colleagues just despise so much.
Let me make it clear at the outset of this debate that I am not here
as any of those things. I personally do not think much of these kinds
of lawsuits, and I want to go on record as saying that. But that is not
the criteria in which I can evaluate this proposed legislation.
As a member of the Committee on the Judiciary, I have some other
responsibilities. I have a responsibility to defend the federalist
system that has been set up under which we operate and which is a
constitutional framework over which States and local governments have
certain responsibilities and over which the Federal Government has
certain responsibilities. And too often, what we hear in this body is
lip service to that federalist system and lip service to the
proposition that people support States' rights and, yet, when the
rubber meets the road, they walk away from any commitment to it. I
think that is what is happening with this legislation that we are
debating today, because this has been an area that has been uniquely
within the province of States and State judiciaries and State
legislatures.
I also want to warn us against this notion that somehow or another,
our court system is run amok and that we should take responsibility as
Members of Congress in trying to correct every aspect of our court
system. Now, I want to tell my colleagues, I suspect that if there was
anybody here who ought to be suspicious and concerned about State
courts and State courts running amok, it would be me. I grew up in the
era of the civil rights movement, and many of the State court judges
during that era were not especially sensitive to people who looked like
me and had the racial characteristics that I do. But one of the things
that I learned during that process is that I do not always like the
result that a court comes out with, but the system of justice and
judicial responsibility and the division of responsibilities between
the legislative branch and the judicial branch, between the Federal,
State, and local governments is a pristine, wonderful system that we
should honor, and sometimes we have to be patient and let this work
itself out in a way over time, and that is exactly what has happened in
this case. From the dropping of this bill to the time that we have come
to the floor to debate it today, every single lawsuit that has been
filed dealing with this issue, every single lawsuit has been dismissed
by the courts.
So when I say this is a solution in search of a problem, understand
that there is no problem out there. The court system has already
addressed this perceived problem that we have. This, I say to my
colleagues, is an effort to take this politicized notion of personal
responsibility and try to rub people's faces in it without regard to
the federalist system in which we are operating.
This bill would insulate an entire industry from liability and would
undermine and insult, insult our State judiciaries in the various
States around the country, and the State legislatures and the whole
concept of Federalism. The growing trend in this body to attempt to
preempt by legislation litigation that is deemed ``undesirable'' or
``frivolous'' is very troublesome. It gets us to a legislation by
anecdote, a legislation by result, rather than any kind of honoring of
the process that we should be working within.
I believe it is arrogant and disrespectful of our system of
government. This bill and others like it presume that State courts,
State legislatures, and the citizens of the States themselves are
woefully incompetent to address burdens on their systems of government
and that, somehow, we, as Members of Congress, have some great
intellectual capacity and responsibility up here to control everything
that exists in our country. It is a wrong-headed approach that we have
set upon.
There is absolutely no evidence in support of the proposition that
our States cannot handle these matters. The details of this bill
drafted in haste will be aptly debated throughout the amendment
process. But my major concern, and one that I will reflect in the
amendments to the bill that I offer, is what we should be doing as
national policymakers. I do not believe that overreacting to every
headline constitutes responsible legislating. I hope that this body
will get back to the business of evaluating the serious problems
confronting the American people and developing some solutions to those
problems: employment, the economy, deficits, war. And this bill does
not do that. Simply put, as I indicated before, this is a solution in
search of a problem, and it would not even be on the floor, I think,
today if we were dealing with some of the problems that we really ought
to be confronting.
Mr. Chairman, with that, having set the framework, I will reserve the
balance of my time.
Mr. SENSENBRENNER. Mr. Chairman, I yield 5 minutes to the gentleman
from Florida (Mr. Keller), the author of the bill.
Mr. KELLER. Mr. Chairman, I thank the gentleman for yielding me this
time.
Mr. Chairman, the food industry is the largest private sector
employer in the United States, providing jobs for 12 million American
citizens. The consequences of these obesity lawsuits against the food
industry is that consumers will pay a higher price for food in
restaurants. Mom and pop restaurants would face unaffordable insurance
rate hikes, and jobs could be cut as a result.
This legislation, in essence, provides that a seller or maker of a
lawful food product shall not be subject to civil liability where the
claim is premised upon an individual's weight gain relating to the
consumption of that food. This is a narrowly-drawn, measured piece of
legislation. It does not immunize the food industry. This legislation
does not preclude suits from false advertising, mislabeling of food,
adulterated foods, or injuries from eating tainted food. The gist of
this legislation is that there should be common sense in the food
court, not blaming other people in the legal court.
Most people have enough common sense to realize that if they eat an
unlimited amount of french fries, milk shakes, and cheeseburgers
without exercising, it can possibly lead to obesity. But in a country
like the United States where freedom of choice is cherished, nobody is
forced to supersize their fast food meals or to choose less healthy
options on the menu. Similarly, no one is forced to sit in front of
their TV all day and play video games, instead of walking or bike
riding.
Richard Simmons, the famous exercise guru, recently said that people
who bring these lawsuits against the food industry do not need a
lawyer, they need a psychiatrist, and the American public seems to
agree. In a recent objective Gallup poll, nearly nine out of 10
Americans, 89 percent, oppose holding the fast food industry legally
responsible for the diet-related health problems of people who eat that
kind of food. Interestingly, overweight people agreed with skinny
people that the fast food industry should not be held responsible for
these types of claims.
Which brings me to the subject of lawyers. And, while we are here,
some of the same lawyers who went after the tobacco industry now have a
goal of suing the food industry for $117 billion, which is the amount
the Surgeon General estimates as the public health costs attributable
to being overweight.
Now, based on a standard contingency fee of 40 percent, that means
these selfless lawyers interested in public good would be recovering
$47 billion for themselves in attorneys' fees, and that is, ultimately,
what this is about. In fact, in June of 2003, lawyers from all across
the United States gathered in Boston for what they called the first
annual conference on legal approaches to the obesity epidemic. To
attend each work shop, the people had to sign an affidavit to attend
the legal work shop in which it said, ``This is intended to encourage
and support litigation against the food industry.''

[[Page H949]]

One of the ringleaders of this litigation conference is a lawyer
named John Banzhaf. Mr. Banzhaf freely admits that his goal is to open
the floodgates of litigation against our Nation's largest private
sector employer: the food industry.

{time} 1245

Specifically, Mr. Banzhaf said this: ``Somewhere there is going to be
a judge and a jury that will buy this. And once we get the first
verdict, as we did with tobacco, it will open the flood gates.''
Now, the Democrats could have called anybody they wanted to. We had a
hearing on this. But they chose to call this man who says it will open
the flood gates. He wants to open the flood gates. That is what they
said then. Then they come here today and it is, What do you mean? There
is no intent to sue the food industry. Well, indeed, lawsuits have been
filed against McDonald's, Burger King, Wendy's, KFC, Kraft/Nabisco with
new suits now threatened by Mr. Banzhaf and others against the makers
of ice cream.
The New York suits included one with a man named Caesar Barber, who
went on ``60 Minutes'' and told them, ``I want compensation for pain
and suffering.'' ``60 Minutes'' said, ``How much money do you want?''
Caesar Barber: ``Maybe $1 million. That is not a lot of money right
now.''
We must think of what this is about. The litigation against the food
industry is not going to make a single person any skinnier; it is only
going to serve to make the trial attorneys' bank accounts a lot fatter.
In summary, we need to make it tougher for lawyers to file frivolous
lawsuits. We need to care about each other more and sue each other
less. We need to get back to the old-fashioned principles of common
sense, of personal responsibility and get away from this new culture
where everybody plays the victim and sues others for their problem.
This legislation is a step in the right direction. I urge my
colleagues to vote ``yes'' on H.R. 339.
Mr. WATT. Mr. Chairman, I yield myself 1 minute simply to respond to
the prior speaker.
Here we go, exactly what I said was about to happen is happening. 89
percent of the public support does not support these kinds of lawsuits,
but that does not mean that we need a Federal statute to deal with this
issue. In fact, it probably means exactly the opposite of that.
Second, there have been a number of suits filed and every single one
of them has been dismissed up to this point. So the process is working.
And you are already beginning to see that this is really about having
this opportunity in an official context to beat up on trial lawyers. We
ought to be trying to do some serious legislating rather than just
politicking with this bill.
Mr. Chairman, I yield 3 minutes to the gentleman from Virginia, Mr.
Scott.
Mr. SCOTT of Virginia. Mr. Chairman, I thank the gentleman for
yielding.
Whatever the merits of the lawsuits which provoke this legislation
are, we ought to focus on the fact that lawsuits ought to be tried in
court, where evidence can be heard and objective law applied.
Today, we are allowing one industry to have the privilege of trying
its lawsuit with politicians who will take politics and polls into
consideration instead of being treated the same as other citizens who
have to try their cases in court. If the case on behalf of the food
industry is strong, then courts will know what to do; they can dismiss
the cases.
Furthermore, if based on the evidence and the law the court finds
that the law suit is frivolous, the court may assess sanctions against
the plaintiffs and lawyers who file the suits. In fact, it is my
understanding that all of the lawsuits have in fact been dismissed. So
what is wrong with the food industry being treated the same as other
industries when it comes to courts deciding whether or not there is
responsibility for injuries to others? And what is wrong with trying
cases in court with unbiased judges and juries hearing both sides of
the case according to rules which allow both sides to produce all
relevant witnesses who will be heard and cross-examined?
This process is in stark contrast to the congressional procedure
where committee chairmen invite the witnesses they want and cross-
examination of witnesses is severely constrained both in time and by
the fact that the interested parties are not able to cross-examine
anyone.
Mr. Chairman, in a democracy it is fundamentally wrong for some
industries to have the privilege of trying their cases in a forum where
their political allies will decide the merits of the case while
everyone else is relegated to the court system where evidence is heard
and the law applied by judges and juries without political
considerations. This bill sets a bad precedent. I therefore hope my
colleagues will oppose this bill.
Mr. SENSENBRENNER. Mr. Chairman, I yield 2 minutes to the gentlewoman
from Texas (Ms. Granger).
Ms. GRANGER. Mr. Chairman, on Saturday I handed out awards to some
4,600 kids that participated with me in the Cowtown 5-K running race
the weekend before. I was happy to promote an activity that gets kids
moving. And I think that getting young people in events like the
Cowtown race is a much better way to combat obesity than targeting
fast-food restaurants with frivolous lawsuits.
The question before this body today is simply, Should it be just as
easy to file a lawsuit against a restaurant for causing obesity as it
is to drive through the nearest take-out window for a quick burger and
fries? The answer is no.
The issue before us is responsibility, individual and personal
responsibility for how we eat and how we exercise. We all know the
statistics: two-thirds of Americans are overweight; 15 percent of our
children are too heavy; obesity rates among teenagers have tripled in
the last 20 years. Blaming the fast-food industry is not the answer to
reducing obesity in America.
Americans can sue the McDonald'ses and Burger Kings of the world
until these establishments can pay no more, but not one American will
lose weight until they eat better and exercise more frequently.
I support this legislation because I do not want Americans to have a
crutch for their overweight problem: restaurants and the fast-food
industry. Instead, I want to provide Americans a better way, a healthy
life-style.
If we really want to address the obesity epidemic, we must focus on
educating youngsters about the dangers of being overweight and how
eating the wrong foods only packs the pounds on. You could utilize
programs such as the CDC's Youth Media Campaign, otherwise known as the
VERB program.
VERB is a proven program that encourages kids to get out and walk,
bike, run, jog, play basketball, baseball, skateboard, anything but
just sitting in the house and watching television.
The net result of lawsuits that blame the fast-food industry for our
overweight problems will be higher prices and lost jobs, not healthier
Americans. Eating right and increasing physical activity is the answer
to a slimmer, trimmer, fitter America, not lawsuits.
Mr. WATT. Mr. Chairman, I yield 5 minutes to the gentlewoman from the
District of Columbia (Ms. Norton).
Ms. NORTON. Mr. Chairman, I thank the gentleman from North Carolina
(Mr. Watt), the subcommittee chair, for yielding and for his very
sensible approach to this issue.
I do not know if my good friends on the other side of the aisle are
trying to change their political identity, but I thought they stood for
federalism and local control. They are, however, developing a pattern
of coming to the floor in response to interest groups to knock out
lawsuits even when they are winning in the courts. What a waste of
time.
Fast-food suits can hardly be the American answer to obesity, a
public health problem; but they may be part of a revolution that is
occurring in the fast-food industry. And I say to the fast-food
industry, keep bringing on those changes at McDonald's and all the rest
of these fast-food places that are hearing us one way or the other.
We all believe you have to take responsibility for what goes into
your own mouth. I come to the floor because I think there is a great
audacity in coming to the floor, as the other side is, to talk about
personal responsibility when we are talking about a public health
problem for which our government has not taken responsibility.

[[Page H950]]

I worked with Chairman Porter, who, a couple years ago, retired from
the House, on an appropriation that started at $125 million. He started
with children. I had a bill called Lifetime Improvement in Food and
Exercise, LIFE; and we joined forces. He came to the Congress to a
reception just to press the notion once again last year.
Secretary Thompson had the audacity to go on television yesterday
talking about some penny ante things that the administration is going
to do. After having reduced this amount from $125 million this year to
$5 million, they tried in the last 2 years to get it to zero. This is
money that was going into reducing obesity among children.
In today's Washington Times, the front page says, and I quote,
``Inactive Americans are Eating Themselves to Death at an Alarming
Rate. Their unhealthy habits are approaching tobacco as the top
underlying preventable cause of death, a government study found.''
What is the government going to do about its government study? I hope
it does more than stop the trial litigation in the States, obviously
not the answer to this problem when 60 percent of our people are
overweight or obese.
An ad campaign as described by the Secretary himself consists of
humor when they say you should get off your duff and walk your children
around the block. Mr. Chairman, this is far more serious than that.
This is the major health problem second only to smoking.
I am grateful to the Committee on Appropriations that instead of
zeroing out public health money for the last 2 years, the appropriation
has put in money. We are going to be trying to get money again this
year so we do more than talk about obesity or try to stop litigation.
When you look at the amount of money that we have put into this
problem ourselves, we started with a good Republican Chair of the HHS
subcommittee, starting at $125 million. Then he retires and the
administration, his administration tries to zero it out.
This Congress says, no, we will not put 125. If the President wants
it gone, we will put 68, then the third year 51, last year $35.8
million. Well, we are going down, not up; but people rush to the floor,
the Committee on the Judiciary regards it as a priority to stop some
lawsuits that are stopping themselves. That is my concern.
My bill, Lifetime Improvement in Food and Exercise, which I joined
with Chairman Porter in producing this first, first significant public
health money, is now being eroded by the administration. And I now find
myself with only $5 million in the administration's budget this time
rather than zero; $5 million reduced from $125 million means they want
public health money to combat obesity gone.
I am going to ask the Members of this House to help me in restoring
money to face this public health problem so that people who are
bringing lawsuits out there know that we can do more than try to knock
out lawsuits that are knocking themselves out, but that we are taking
public health responsibility for a public health crisis, just as we
expect them to take personal responsibility for what they eat every
day.
Mr. WATT. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman and Members, I would just reiterate a couple of points.
It strikes me that given what has transpired since this bill was
introduced, even if it was originally a good idea and even if you
accepted the notion that State courts were going to be irresponsible
and not do what they are supposed to be doing, now that we have seen
the passage of time and had the proof that State courts will dismiss
these lawsuits, even if this bill was a good idea, it seems to me that
we have proven with the passage of time that it is now definitely a
solution in search of a problem. The lawsuits have been dismissed.

{time} 1300

So, in effect, the system has worked exactly like we would like it to
work. That is the way our system is set up. If an individual believes
that he has a cause of action and they believe that they have been
wronged, or somebody has failed in meeting a standard that is
applicable, they have the right to file a lawsuit, go to court, and
have that court make a determination on their lawsuit. And that is
exactly what has happened.
Now, quite often people make those judgments in different ways and
you end up with lawsuits being filed that get dismissed. And that
happens to probably well over 90 percent of the cases that get filed in
court--they get dismissed before they come to trial.
Does that mean that they are all frivolous? Well, some of them
probably are frivolous. And there are rules in place that allow the
courts to sanction people and fine them and charge them attorneys fees
of the opposing party when they file frivolous lawsuits. But people
still file frivolous lawsuits, and those rules then are triggered and
the courts handle that.
Does it mean that even the frivolous lawsuits should not have been
dismissed? Well, there is another category of cases where there is not
enough law to support filing a lawsuit. Whether you have a good lawsuit
is a function of whether you have got the facts and a function of
whether you have got the law on your side. But our system is set up to
allow courts to make that determination, and I would submit that State
courts have as much expertise, probably more expertise, in making these
determinations than our Federal judiciary.
The next point I would draw from this is that as these lawsuits have
been dismissed, it strikes me that it is less and less and less likely
that subsequent lawsuits will be filed because then you have got a
backdrop against which people can go into court and say, well, this
issue has been determined by a court adversely and so it should not be
here. There is an increased possibility, probability that courts will
find that subsequent lawsuits are frivolous in this area. But all of
those things argue for our staying out of this and not building a whole
new Federal framework for dealing with a problem that does not exist
because our system is working.
Now, the next point I want to make that I have heard come out of this
general debate up to this point is this job loss notion. I have heard
some really interesting explanations by this administration about why
we are losing jobs in this country. But this about takes all I have
heard. Here we are now with some of my colleagues saying, well, if we
allow these lawsuits to be filed against McDonalds or whatever the fast
food chains are, we are going to result in job loss, and that is what
is causing the big job loss in this country.
Give me a break. We ought to know better. And there are a bunch of
reasons that I could go into about why we are losing jobs, but this
would be about the 999,000th reason that I would get to before I would
be identifying a source for job loss in this country. So we are kind of
grasping at straws here, from my perspective, on that argument.
Finally, it amazes me how the same people who, over and over and
over, had campaigned saying they believe in local control and States'
rights. When they do not get the result that they want at the State
level or even in this case when they do get the result that they want
at the State level because all of these cases have been resolved
adversely that have been filed, it is amazing to me why we think in our
arrogance in this body that we ought to just take over because we do
not like the result or we think State legislators are incompetent or
local elected officials are incompetent, we ought to take it over at
the Federal level and forget about the constitutional framework that we
are operating in. And it is more inexcusable to me when these bills
come out of the Committee on the Judiciary, where there should be the
highest of respect for the constitutional parameters in which we
operate.
This is not something that we should be doing from a number of
different perspectives. And I just beg my colleagues, I guess it is a
good debate. It is a good way to get us out here on the floor and take
up some time when we really ought to be talking about the things that
are really causing job loss. We are out here grasping at straws looking
for some something to do today. Do we not have something else that we
could be doing on the floor today that really honors our constitutional
framework? Surely there must be something better.
Mr. Chairman, I yield back the balance of my time.

[[Page H951]]

Mr. SENSENBRENNER. Mr. Chairman, I yield myself the balance of my
time.
Mr. Chairman, I have been listening to this debate since it began and
until the gentleman from North Carolina (Mr. Watt) got up and brought
in the whole subject of job loss, I did not hear anything about job
loss at all.
Well, this bill is about preventing job loss because if a franchisee
of a major national fast food chain ends up getting sued, he will be
out of business, even if he wins his lawsuits because of all the legal
fees and deposition fees and expert witness fees that he is going to
have to pay.
So it seems to me that for once, Congress is getting ahead of the
curve on this because we do have the evidence that a bunch of
plaintiffs lawyers got together and they required everybody who went to
this conference to sign an affidavit of confidentiality and a promise
that they would not consult with or represent the food industry until
the end of 2006.
Now, let us get back to what this bill consists of. This bill
consists of imposing personal responsibility. And in my part of the
general debate, I quoted Susan Finn, who is the head of the American
Council on Fitness and Nutrition. She said, ``If you are obese, do not
get a lawyer. See your doctor. See a nutritionist and see a personal
trainer, because you made yourself obese. It was not the system that
did it or the local fast food chain that did it. You did it yourself.''
And then I quoted the doctor who runs the residential facility in
Durham, North Carolina, and he said, ``The worst thing in the world you
can do for an obese person is to give them a way out, to let them blame
somebody else. They are going to have to look in the mirror if they
want to get better and they want to prevent themselves from having all
the health problems and lowered life expectancy as a result of eating
too much and eating too much of bad stuff.''
So, let us talk about saving jobs before they go. Let us talk about
not giving people who are in denial a reason to get themselves off the
hook. And let us talk about putting some sense in our legal system
because it is not the food industry or those who sell a legal product
that make people obese. It is people buying too much and consuming too
much of that legal product. That is what this bill attempts to address
and that is why it ought to pass.
Mr. CANTOR. Mr. Chairman, I rise today in support of legislation to
end misguided obesity-related lawsuits. The Personal Responsibility in
Food Consumption Act, H.R. 339, would take a strong step forward in
accomplishing this goal. I strongly support this common sense
legislation and believe it is time to end frivolous lawsuits against
our nation's 878,000 restaurants and their 12 million employees.
In recent years, our nation's vast restaurant industry has come under
attack from absurd obesity lawsuits. This litigation has bogged down
the judicial process and threatens small business owners. A recent poll
shows that 89 percent of Americans believe that restaurants should not
be held liable for an individual's obesity or weight gain. The National
Restaurant Association believes lawsuits attacking food is not the
answer to our nation's obesity problem. Emphasis must be placed on
education, personal responsibility, moderation, and healthier
lifestyles.
This legislation would prevent food companies from being held liable
for the condition of obese and overweight consumers. Our public health
would remain protected and any establishment distributing food that has
a defect or that is improperly prepared will be held accountable.
Mr. Chairman, the time has come to end these lawsuits against our
American restaurants and small business owners.
Mr. STARK. Mr. Chairman, I rise in opposition to the so-called
Personal Responsibility in Food Consumption Act. This legislation is
unnecessary. Lawsuits brought against fast food companies for allegedly
causing obesity have been routinely thrown out. The fact is the law has
worked in repelling bogus legal claims.
Yet, I suppose just like every other self-serving business lobby in
Washington, the fast food industry wants the Republicans to protect
them from being responsible. It's as if they're asking the GOP to
``super size it'' with a massively overreaching bill that grants fast
food companies broad and unprecedented liability protection even in
instances where they are clearly negligent.
Remember now that this legislation is an unnecessary response to a
completely imagined problem. Consider then the impact it will have on
ordinary Americans if they are injured by reckless behavior.
Well, to start with, this bill says that if a fast food chain is
reckless and causes injury in a manner that is not already prohibited
under state or federal law, they can't be held accountable. Second, if
a fast food restaurant does break a state or federal law but says they
didn't mean to do it, they get off just as easy.
This is a question of responsibility. I don't think most Americans
believe anyone ought to get this kind of special treatment, especially
when the result might well be more reckless and dangerous behavior.
Finally, let me just say that I find it interesting we would bring up
the issue of obesity without a meaningful discussion of ways in which
we can promote better health.
There is no discussion in this chamber today about making sure
children are learning about and getting better nutrition. There is not
a word mentioned about better food labeling so that Americans are
better informed about the impact their choice of diet has on their
health and longevity. We aren't talking about making sure the fast food
industry fully discloses the health risks of high fat food that they
have continually marketed and made easily accessible in every corner of
this country.
I ask my colleagues to vote down this unneeded and potentially
damaging legislation--it's a matter for the courts, not Congress. We
ought to focus on bringing Americans to better health, rather than the
healthy profits of the fast food industry.
Ms. JACKSON-LEE of Texas. Mr. Chairman, I strongly oppose this bill.
It is advertised as a bill that stops frivolous lawsuits. Essentially,
it really is frivolous legislation. Fast food lawsuits are extremely
rare, and existing court procedures already weed most of them out
before they get to trial. This is a manufactured issue, and this bill
was created just to get a political score, catering to big
corporations. The real problem is that to get that political score,
this bill compromises the rights of states, denies citizens their right
to be heard in a court of law, and impinges on the judiciary.
Furthermore, this bill will stifle a dialogue that is leading to
better information and education about the health effects of various
ingredients, and encouraging the food industry to develop more
healthful products. This silly bill could cost lives.
Court procedures that have been carefully developed over the
centuries already ensure that defendants are treated fairly. It is up
to the courts to decide if a case is frivolous. Our legal system has
multiple procedural safeguards to ensure defendants' rights. For
example, judges monitor filings at every step, and can dismiss cases
that lack merit at any time. Sufficient quality evidence must be
present for any case to proceed. Attorneys can be punished and, in some
cases, may be required to pay monetary penalties if they bring
frivolous cases to court, or otherwise abuse the process. Also, the
contingency fee system keeps attorneys from taking baseless cases.
Usually, they only get paid if a judge or jury determines that the case
was not frivolous.
However, just the threat of such cases has made our food supply safer
and more healthful. Since the press coverage of obesity lawsuits began,
fast food chains and junk food producers have taken more responsibility
for their products. Consider the following developments: after
publicity over a lawsuit against Kraft Foods regarding the dangerous
trans-fat found in Oreo cookies, the FDA issued requirements that food
labels reveal exact levels of the artery-clogger. According to the
Associated Press; ``the FDA has estimated that merely revealing trans-
fat content on labels would save between 2,000 and 5,600 lives a year,
as people either would choose healthier foods or manufacturers would
change their recipes to leave out the damaging ingredient.''
The New York Times has reported that Kraft and other major food
companies, like McDonalds, Kellogg and PepsiCo, have promised to change
how they produce foods and to take health concerns into greater
consideration. The New York City public school system banned candy,
soda and other sugary snacks from school vending machines to combat
obesity among schoolchildren.
Although the most recent lawsuit against McDonalds was dismissed in
September, it was still followed by a sudden wave of corporate
responsibility. McDonalds will now offer a ``Go Active Meal'' for
adults modeled after the children's Happy Meal. It will contain a
healthy salad along with exercise tools. Burger King has joined the
effort by creating low fat chicken baguettes for health conscious
consumers, and Pizza Hut is offering the Fit 'N Delicious pizza that is
only 150 calories per large pizza compared to the 450 calories in just
one slice of its Stuffed Crust pizza.

I am against frivolous lawsuits, and hope the courts will continue to
exercise restraint and control in protecting the defendants from

[[Page H952]]

ridiculous claims. But the few suits that have come up have cost very
little overall, and have started a public dialogue that has led to a
new level of corporate responsibility and consumer awareness. We should
not interfere with that dialogue.
In effort to lessen the frivolous nature of this bill, I offer two
amendments and ask that my colleagues join me to save what promises to
be an attempted legislative fix to a problem that has already been
addressed in the courts. First of all, for the sake of clarification,
this bill prohibits suits against food manufacturers, and relies on the
definition of ``food'' under the Food, Drug and Cosmetic Act. In 1994,
Congress passed the Dietary Supplement Health and Education Act to
clarify that ``a dietary supplement shall be deemed to be a food'' for
all purposes within the Food, Drug and Cosmetic Act (21 USC 301 (ff)).
Because this bill relies on this definition of ``food,'' it also
applies to dietary supplements.
The first of these amendments, ``MJ-004,'' will ensure that dietary
supplement manufacturers don't get away with murder. This bill, as
drafted, bans not only so-called ``obesity-related suits,'' but any
civil action that ``relate[s] to . . . a person's consumption of a
qualified product . . . and any health condition that is associated
with a person's weight gain.'' Note that the person with the health
condition does not have to be obese, they only have to have a health
condition that obese people also have. Heart disease and kidney
problems would be some of those diseases, for example. Hidden in this
convoluted definition is the fact that this bill will shield the
producers of dietary supplements from all liability. I offer this
amendment to ensure that makers of these highly dangerous--and highly
unregulated--drugs are held accountable for their actions.
Now that ephedra is gone, new diet drugs are already taking its
place: bitter orange, aristolochic acid and usnic acid. All three have
been associated with kidney and liver problems. While the FDA claims
that it will look into the matter, we all saw what happened the last
time the FDA began its cumbersome process. How many people will die
this time? While the government works through its bureaucratic process,
we have to let people have their day in court to stop these tragic
events from happening again.
I offered an amendment, ``WATT-019,'' in addition to ``MJ-004.'' This
amendment would prohibit the food industry--which enjoys broad immunity
under this bill--from initiating lawsuits against any person for
damages for other relief due to injury or potential injury based on a
person's consumption of a qualified product and weight gain, obesity,
or any health condition that is associated with a person's weight gain
or obesity.
This amendment is necessary to insure that the public debate on the
health and nutritious effects of mass marketed food products is not
completely squelched by this bill.
In 1996, Oprah Winfrey was sued under my home state's ``food
disparagement'' laws by the beef industry for comments she made
following the first ``Mad cow'' scare this country witnessed. After
years of litigation, transfer of her television show to Texas, and an
expenditure of over $1 million, Ms. Winfrey prevailed at trial and on
appeal.
My amendment insures that what's good for the geese is good for the
gander. Those advancing healthy diets by discouraging the consumption
of certain foods because of their adverse effects on a person's health
and weight gain should not be subject to litigation from the food
industry while it stands immunized from any accountability under this
bill.
I will vote against this bill and urge my colleagues to do the same.
Mr. SHUSTER. Mr. Chairman, I rise today in support of H.R. 339, the
Personal Responsibility in Food Consumption Act. This common sense
legislation would prohibit lawsuits that claim a food manufacturer or
seller is responsible for an individual's weight gain or obesity.
The food service industry is our nation's largest private sector
employer, providing more than 12 million jobs in this country. Due to
the industry's success of selling a legal product and meeting consumer
demands, they have become the next target for the personal injury trial
lawyers. If we do not pass this legislation, we will clear the way for
the next free-for-all and litigation-lottery created to line the
pockets of trial lawyers and send the message to Americans that they no
longer have to be responsible for their actions. Make no mistake about
it, this legislation is about personal responsibility. Each individual
must be held accountable for their own personal choices and that
includes the choices they make regarding what and how much they eat.
By supporting this legislation, we are not turning our backs on this
country's problem with obesity but will in fact take one step closer in
addressing the issue in a responsible and reasonable manner. As a
nation, we must look for solutions to this public health problem.
However, the solutions will not be found in the courtroom. Baseless and
frivolous lawsuits are a misguided attempt to correct the poor eating
habits of Americans and will not help a single individual in their
struggle with obesity. The answers to our nation's struggle with weight
and the associated health problems can be found by educating
individuals about healthy lifestyle choices. It is doctors,
nutritionists, and other health care providers that can offer help to
overweight Americans--not personal injury lawyers. If lawsuits that
blame the food industry for an individual's weight gain are allowed, we
will simply make it easier for individuals to shift the blame to
someone else. In a society that values choices and personal freedom, I
believe we must take responsibility for our own choices in order to
preserve them. We cannot stand by and let trial lawyers attempt to
legislate through litigation. I urge my colleagues to vote for common
sense and personal responsibility by supporting this important
legislation.
Mr. BLUMENAUER. Mr. Chairman, if anyone needed an example of how
Congress misses opportunities to make a difference, they need only to
look at today's discussion of H.R. 339, a fast food tort reform bill.
The very title invites parody. At a time when obesity is the fastest
growing health care in America, affecting over one-third of American
adults and touching almost every family, and when we have particular
concern about an explosion of childhood obesity and related illnesses,
there is good reason for Congress to become concerned.
Congress could make a real difference by providing reasonable diet
standards including school lunch programs to help remedy this epidemic.
Another step would be to have education reform and ``leave no child
behind,'' have a provision dealing with children's health. Physical
education is not a part of Congress' answer to school reform, and we
find today that most of our children do not get regular physical
activity as a daily part of the school curriculum. In our
transportation bill we could provide major opportunities for safe
routes to school so that our children could walk and bike to school on
their own. These would be simple, commonsense, cost-effective steps to
improve the health of our children and their families, while improving
the environment and quality of life.
Instead of dealing substantively with the obesity problem, Congress
in its wisdom has seen fit to continue selectively tinkering with the
legal system by providing immunity from litigation. Never mind there
has never been a jury verdict for a plaintiff in an obesity lawsuit.
Corporations like McDonalds are well suited to take care of themselves,
but the House leadership is taking a page out of their recent
outrageous, unprecedented immunity for gun manufacturers. Not only is
this legislation unneeded, but it would immunize defendants for
negligent and reckless behavior including mislabeling of food products,
something that I find impossible to explain to American consumers.
I find this trivializing a serious issue, undercutting fundamental
legal protections, and providing a remedy for a problem that does not,
at this point, appear to exist.
Mr. HAYES. Mr. Chairman, I rise today in support of H.R. 339--the
Personal Responsibility in Food Consumption Act. This legislation will
help to avoid frivolous lawsuits that will serve only to victimize
innocent restaurants and make the American consumer pay a price.
Frivolous lawsuits are driving up the cost of doing business in this
country and it's costing us jobs. The simple fact is that
responsibility for obesity here in America rests with the individual
choices made by each citizen. And this legislation makes that clear.
Recently, an editor in my district made this point very clear. I
would like to quote from his column, which ran in the Richmond County
Daily Journal, which I believe represents the spirit of this important
legislation.

McDonald's nor any of its comrades in the fast-food world,
doesn't hold a gun to your head and force you to eat
Supersize fries. You--and you alone--make that decision;
McDonald's is simply following supply-and-demand protocol by
offering Supersize fries.
The Big M in the Sky didn't make you obese; you did.

It is past time in this country for all individuals to take
responsibility for the choices and freedoms available to us as
Americans and cease passing the buck through frivolous lawsuits that
blame others for our poor decisions.
I strongly urge my colleagues to support this legislation that will
prevent lawsuits based on poor decision-making.
Mr. CONYERS. Mr. Chairman, I rise in strong opposition to this
legislation which is both misleading and frivolous.
H.R. 339 goes much further than its stated purpose of banning the
small handful of private suits brought against the food industry. It
also bans suits for harm caused by dietary supplements and mislabeling
which have nothing to do with excess food consumption, and would
prevent state law enforcement officials from bringing legal actions to
enforce their own consumer protection laws.
If you don't believe me, I implore you to read the bill. Section 4(5)
would prevent any

[[Page H953]]

legal action relating to ``any health condition that is associated with
a person's weight gain or obesity'' stemming from consumption of a
``qualified food product,'' which in turn is defined to include food
and nutritional supplements. There is no requirement whatsoever that
the person actually have gained weight as a result of consuming the
product. As a result, the bill would prevent persons who develop heart
disease and diabetes from dietary supplements such as Ephedra and Phen
Phen from being able to obtain redress. Moreover, under the Manager's
amendment, private actions for harm caused by adulterated or poisoned
products would also be limited.
Even worse, the bill bans these lawsuits on a retroactive basis, so
it would throw out dozens of Ephedra and Phen Phen cases currently
pending in court. This is a far cry from the concerns that led to this
legislation.
H.R. 339 would also prevent state law enforcement officials from
enforcing their own laws. Under section 4(3) the bill applies to legal
actions brought by any ``persons,'' which in turn is defined to include
any ``governmental entity.'' That means state attorneys general will be
prevented from pursuing actions for deceptive practices and false
advertising against the food industry. Again, this is a vast departure
from most of the so-called tort reform bills considered by this
Congress, which are drafted to apply to private lawsuits.
The legislation is frivolous because it deals with a non-existent
problem. To date every single private lawsuit against the industry--a
total of five--have been dismissed. The system is working fine, there
is absolutely no crisis. Frivolous suits are thrown out of courts, and
lawyers who bring them are subject to fines and other sanctions. It is
absurd that this Congress would even consider eliminating liability
when today's Washington Post is reporting that obesity is passing
smoking as the leading avoidable cause of death in our nation.
Lets not pass a bill which harms the victims of Ephedra and Phen
Phen, or handcuffs our state attorneys general from protecting
consumers.
I urge a ``no'' vote.
Mr. PAUL. Mr. Chairman, Congress is once again using abusive
litigation at the state level as a justification nationalizing tort
law. In this case, the Personal Responsibility in Food Consumption Act
(H.R. 339) usurps state jurisdiction over lawsuits related to obesity
against food manufactures.
Of course, I share the outrage at the obesity lawsuits. The idea that
a fast food restaurant should be held legally liable because some of
its customers over indulged in the restaurants products, and thus are
suffering from obesity-related health problems, is the latest blow to
the ethos of personal responsibility that is fundamental in a free
society. After all, McDonalds does not force anyone to eat at its
restaurants. Whether to make Big Macs or salads the staple of one's
diet is totally up to the individual. Furthermore, it is common
knowledge that a diet centering on super-sized cheeseburgers, french
fires, and sugar-filled colas is not healthy. Therefore, there is no
rational basis for these suits. Some proponents of lawsuits claim that
the fast food industry is ``preying'' on children. But isn't making
sure that children limit their consumption of fast foods the
responsibility of parents, not trial lawyers? Will trial lawyers next
try to blame the manufactures of cars that go above 65 miles per hour
for speeding tickets?
Congress bears some responsibility for the decline of personal
responsibility that led to the obesity lawsuits. After all, Congress
created the welfare state that popularized the notion that people
should not bear the costs of their mistakes. Thanks to the welfare
state, too many Americans believe they are entitled to pass the costs
of their mistakes on to a third party--such as the taxpayers or a
corporation with ``deep pockets.''
While I oppose the idea of holding food manufactures responsible for
their customers' misuse of their products, I cannot support addressing
this problem by nationalizing tort law. It is long past time for
Congress to recognize that not every problem requires a federal
solution. This country's founders recognized the genius of separating
power among federal, state, and local governments as a means to
maximize individual liberty and make government most responsive to
those persons who might most responsibly influence it. This separation
of powers strictly limits the role of the federal government in dealing
with civil liability matters; and reserves jurisdiction over matters of
civil tort, such as food related negligence suits, to the state
legislatures.
Finally, Mr. Chairman, I would remind the food industry that using
unconstitutional federal powers to restrict state lawsuits makes it
more likely those same powers will be used to impose additional federal
control over the food industry. Despite these lawsuits, the number one
threat to business remains a federal government freed of its
Constitutional restraints. After all, the federal government imposes
numerous taxes and regulations on the food industry, often using the
same phony ``pro-consumer'' justifications used by the trial lawyers.
Furthermore, while small businesses, such as fast-food franchises, can
move to another state to escape flawed state tax, regulatory, or legal
policies, they cannot as easily escape destructive federal regulations.
Unconstitutional expansions of federal power, no matter how just the
cause may seem, are not in the interests of the food industry or of
lovers of liberty.
In conclusion, while I share the concern over the lawsuits against
the food industry that inspired H.R. 339, this bill continues the
disturbing trend of federalizing tort law. Enhancing the power of the
federal government is in no way in the long-term interests of defenders
of the free market and Constitutional liberties. Therefore, I must
oppose this bill.
Mr. SENSENBRENNER. Mr. Chairman, I yield back the balance of my time.
The CHAIRMAN pro tempore (Mr. Ose). All time for general debate has
expired.
Pursuant to the rule, the amendment in the nature of a substitute
printed in the bill is considered as an original bill for the purpose
of amendment and is considered read.
The text of the amendment in the nature of a substitute is as
follows:

H.R. 339

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 ``Personal Responsibility in
Food Consumption Act''.

SEC. 2. 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 qualified civil liability action, all
discovery and other proceedings shall be stayed during the
pendency of any motion to dismiss unless the court finds upon
motion of any party that particularized discovery 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), unless otherwise
ordered by the court, any party to the action with actual
notice of the allegations contained in the complaint shall
treat all documents, data compilations (including
electronically recorded or stored data), and tangible objects
that are in the custody or control of such person and that
are relevant to the allegations, as if they were the subject
of a continuing request for production of documents from an
opposing party under applicable Federal or State rules of
civil procedure, as the case may be. A party aggrieved by the
willful failure of an opposing party to comply with this
paragraph may apply to the court for an order awarding
appropriate sanctions.
(d) Pleadings.--In any action of the type described in
section 4(5)(A), the complaint initiating such action shall
state with particularity the Federal and State statutes that
were allegedly violated and the facts that are alleged to
have proximately caused the injury claimed.

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 in
interstate or foreign commerce.
(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.--The term ``qualified
civil liability action'' means a civil action brought by any
person against a manufacturer 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, related to, or
resulting in injury or potential injury resulting from a
person's consumption of a qualified product and weight gain,
obesity, or any 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 any person, but shall not include--

[[Page H954]]

(A) an action in which a manufacturer or seller of a
qualified product knowingly and willfully violated a Federal
or State statute applicable to the manufacturing, marketing,
distribution, advertisement, labeling, or sale of the
product, and the violation was a proximate cause of injury
related to a person's weight gain, obesity, or any health
condition associated with a person's weight gain or obesity;
(B) an action for breach of express contract or express
warranty in connection with the purchase of a qualified
product; or
(C) an action regarding the sale of a qualified product
which is adulterated (as described in section 402 of the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. 342)).
(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 in interstate or foreign commerce.
(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.

The CHAIRMAN pro tempore. No amendment to that amendment shall be in
order except those printed in the designated place in the Congressional
Record and pro forma amendments for the purpose of debate. Amendments
printed in the Record may be offered only by the Member who caused it
to be printed or his designee and shall be considered read.
Are there any amendments?

Amendment No. 5 Offered by Mr. Sensenbrenner

Mr. SENSENBRENNER. Mr. Chairman, I offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 5 offered by Mr. Sensenbrenner:
Section 3(c)(1), strike ``In any qualified civil liability
action,'' and insert ``In any action of the type described in
clause (i) or (ii) of section 4(5)(B),''.
Section 3(d), strike ``section 4(5)(A)'' and insert
``section 4(5)(B)(i)''.
Section 4(5), strike ``The term'' and insert ``(A) Subject
to subparagraphs (B) and (C), the term''.
Section 4(5), strike ``any person, but shall not include--
'' and insert ``any person.''
Section 4(5), insert after ``any person.'' (as inserted by
the preceding instruction) the following:
(B) Such term shall not include-
Section 4(5), strike ``(A) an action'' and insert ``(i) an
action''.
Section 4(5), insert ``or'' after ``obesity;''.
Section 4(5), strike ``(B) an action'' and insert ``(ii) an
action''.
Section 4(5), strike ``; or'' and insert a period.
Section 4(5), strike subparagraph (C) and insert the
following:
(C) Such term shall not be construed to include an action
brought under the Federal Trade Commission Act (15 U.S.C. 41
et seq.) or the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 301 et seq.).

Mr. SENSENBRENNER. Mr. Chairman, my amendment does not alter the
substance of the bill, it simply clarifies it further. First, to
clarify and ensure consistency in interpretation, it simply amends one
phrase in the bill's stay provisions in Sec. 3(c) to track language
used in the bill's pleading requirements in Sec. 3(d). Second, it
replaces Sec. 4(5)(c) with language making it clear that the term
``qualified civil liability action'' does not include an action brought
under the Federal Trade Commission Act or the Federal Food, Drug and
Cosmetic Act.
I believe that this change satisfies the objections that the
Committee on Energy and Commerce levied against the bill.
I would urge the Members to support my clarifying amendment.
Mr. DINGELL. Mr. Chairman, I rise in support of the amendment.
(Mr. DINGELL asked and was given permission to revise and extend his
remarks.)
Mr. DINGELL. Mr. Chairman, I rise in support of this amendment. I
rise in support of the thesis that we should be considering these
matters.
This legislation is a very important part of the administration's
program. Just think what it does for this Nation. It says that civility
liabilities actions in Federal, State courts against food
manufacturers, distributors or sellers that are based on a claim that
the person's food consumption resulted in weight gain, obesity or a
health condition that is associated with weight gain or obesity is
terminated. A very important step.
Now let me give you the history of what we are talking about here,
because the administration has an economic program and it is an
important economic program and the American people need to know what it
is.
First, the Chairman of the Council of Economic Advisors said that the
transportation of American jobs abroad or outsourcing is a normal part
of trade and he supports it. Second, the administration has come
forward with a serious attempt to expand the definition of
manufacturing in this country, something which is very important,
especially if you are sending manufacturing jobs overseas. And this
administration has sent 2.7 million manufacturing jobs overseas. They
have also lost 3.3 million jobs in the United States. So there is a
serious attempt on the part of this administration to grapple with that
problem.
They seek to see to it that we can change the definition of
manufacturing jobs now so that they cover fast food handling. Just
think of what this means in terms of jobs for the American people. Jobs
in manufacturing that paid $27 an hour will now pay minimum wages at
McDonalds or Wendy's or Burger King or somebody like that. But just
think of the number of new jobs that they can create.
Now, this bill is going to protect those new manufacturing jobs
against the prospect of lawsuits which might, in some way, jeopardize
the expansion of the American economy and the creation of new jobs in
manufacturing.

{time} 1315

I think that this tells us many things. First of all, it says they no
longer care about autos or steel or aircraft or other important
manufacturing concerns and interests that mean jobs, real jobs for the
American people, but at least it means that they are paying attention
to the fact that we have got to have something done for job creation in
this country. It means that they are finally recognizing that we have
to protect some portion of the American economy.
The fact that they are beginning with fast food, and food should not
be a source of condemnation but rather one of praise, because it means
that after a long slumber, they have come alert to a significant
problem, the fact that they are not competent to come forward with a
real solution, which puts Americans back to work in real jobs, which
would enable Americans to have jobs, which will enable them to feed
their families, to house them properly, to see to it that they are
properly educated or go to college is only a beginning.
We must hope that with the assistance of this body and the passage of
this important legislation that perhaps, just perhaps, we will begin
down the road towards doing something about protecting American
manufacturing, about protecting American manufacturing jobs and about
seeing to it that Americans go back to work.
I do not want my colleagues to denigrate the administration. It is
not funny. It is sad, and what I want to say to my colleagues is, it is
time we do something more than just pass this kind of legislation.
Let us address the problem of the sanctions that the Europeans are
getting ready to put on American manufacturers and American industry
and the American economy. There is a discharge petition down here at
the clerk's desk. My colleagues can sign on it if they want. We can
begin to address the fact that this administration does not care about
manufacturing, that they have lost millions of manufacturing jobs, that
they are not able to be truthful about it.
Last month, we got 22,000 jobs through. In these jobs, 21,000 of them
were government jobs, State and local. They were not manufacturing.
They were not jobs that put people to work, and they were not jobs that
increase productivity for the economy. They were just jobs in the
service industry.
If my colleagues look, they will find that there are hundreds of
thousands of Americans every month who are falling off the unemployment
rolls. If my colleagues look, they will find that there are millions of
Americans looking for jobs. They will find that the real unemployment
level is around 7.4 million instead of the 5.6 percent that they are

[[Page H955]]

talking about. This is a serious problem. It needs to be addressed.
This kind of legislation will not do it.
Mr. WATT. Mr. Chairman, I move to strike the last word, and I am
going to ask the gentleman from Michigan if I can ask him a question or
two, if he will go back to the microphone because he touched on a
subject that I talked about in the general debate here, and he at least
has tried to put this in perspective for me.
I could not quite figure out what it was that the argument was that
this bill was about job creation. Is the gentleman now saying that the
production of hamburgers is a manufacturing job?
Mr. DINGELL. Mr. Chairman, will the gentleman yield?
Mr. WATT. I yield to the gentleman from Michigan.
Mr. DINGELL. Mr. Chairman, that is what the administration would tell
us, but I would say to my friend, that I am as confused on what the
administration's policy is as the administration is and as my good
friend is, because they do not seem to know what they are doing, what
they are standing for or what they are about. They like jobs going
overseas. They think that manufacturing jobs should be flipping
hamburgers or handling trays or dealing with mopping the floor in a
McDonald's. Those, to this administration, are massive manufacturing
jobs.
At the same time, they are not giving tax cuts to the people who
would buy those hamburgers or who would buy American automobiles or do
other things to make the economy really move and go as it should.
Mr. WATT. Mr. Chairman, I appreciate the gentleman giving me that
enlightenment because I had been trying to stretch my imagination to
figure out how this debate was about jobs, and I think the gentleman
has put his finger on it. I do not necessarily agree with him, but at
least that gives the argument some plausibility if one is trying to
argue that the processing of hamburgers is manufacturing jobs and it is
a manufacturing process and that we have got to protect manufacturing
jobs in this country, then we want to do everything we can, but I think
it is a stretch.
As I said before the gentleman arrived on the floor, I have heard
some pretty interesting explanations for job loss in this country, but
this would be way, way, way down the list, like 999,000 on my list of
the problems that is creating job loss in this country. I am surprised
that the sponsors of this bill have couched it in terms of job
creation, but the gentleman has certainly, with the years of experience
he has been here, given me some framework within which to evaluate
that. I am most appreciative to him.
I yield to the gentleman.
Mr. DINGELL. Mr. Chairman, I thank the gentleman. I will observe that
the creation of jobs is one of the major functions of government and
seeing to it that we have the prosperity that is needed, that people
can work, they can raise their families well, that they can heighten
expectation of this generation and the next generation for the future
of this country.
I would say that sending jobs to India or China is not a function of
which the administration could be proud. I would say that the
administration's got to start functioning and focusing on those
questions. I would say they are not. I would say this body, with this
legislation, is not focusing on those questions either.
It is time we get down to the serious business of addressing jobs,
manufacturing, opportunities for Americans and stop all of this
piddling around with nonsense that accomplishes nothing in the broad
public interest.
Mr. WATT. Mr. Chairman, reclaiming my time, I am going to join my
colleague from Michigan in supporting the amendment. I am not sure
whether it was tongue-in-cheek that he was supporting the whole
concept, but I cannot join him in supporting the bill if he is
supporting the bill. I doubt that that is what he is doing. I think
that was kind of tongue-in-cheek that he was proceeding, but I
certainly support this amendment. It makes a terrible bill less
terrible. We could not make it any worse, I do not think, and more
importantly, from the sponsor's perspective, it keeps the bill from
having to go to the Committee on Energy and Commerce.
Mr. DINGELL. Mr. Chairman, if the gentleman would yield, we will
receive this bill most kindly in the Committee on Energy and Commerce,
and we would have some splendid questions for the sponsors of this
legislation about jobs and job creation.
Mr. WATT. But this is such a critical piece of legislation that it
must be considered on the floor today and anything that would delay the
consideration of it on the floor today, even if it went to the
Committee on Energy and Commerce, which has jurisdiction over most food
issues and matters of commerce of this kind, would surely be
counterproductive.
Mr. DINGELL. Mr. Chairman, it would be helpful, I believe.
The CHAIRMAN pro tempore (Mr. Ose). The question is on the amendment
offered by the gentleman from Wisconsin (Mr. Sensenbrenner).
The amendment was agreed to.

Amendment No. 6 Offered by Mr. Scott of Virginia

Mr. SCOTT of Virginia. Mr. Chairman, as the designee of the gentleman
from North Carolina (Mr. Watt), I offer an amendment.
The CHAIRMAN pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 6 offered by Mr. Scott of Virginia:
At the end of the bill (preceding the amendment to the long
title), insert the following new section:

SEC. 5. STATE CONSUMER PROTECTION ACTIONS.

Notwithstanding any other provision to the contrary in this
Act, this Act does not apply to an action brought by a State
agency to enforce a State consumer protection law concerning
mislabeling or other unfair and deceptive trade practices.

Mr. SCOTT of Virginia. Mr. Chairman, this amendment reads simply:
``Notwithstanding any other provision to the contrary in this Act, this
Act does not apply to an action brought by a State agency to enforce a
State consumer protection law concerning mislabeling or other unfair
and deceptive trade practices.''
Mr. Chairman, if the House is going to decide that we will try some
cases instead of letting them be tried in court, we ought to at least
limit that to the fast food rhetoric that we have heard on the floor.
This bill, in fact, covers not only fast food lawsuits, but also
litigation involving consumer protection when obesity may be one of the
elements of the case.
Every single State has laws in the books to protect its consumers.
Each State has laws to protect its consumers from misleading practices.
As written, the bill will prevent States' Attorneys General from
enforcing these laws. It will not just stop the fast food suits that my
colleagues have discussed, but because a person is defined in section
4(3) of the bill to include governmental entities, it will prevent
States from getting injunctions, cease and desist orders, or imposing
fines against those who endanger consumers.
The exception for a willful and knowing violation is not just enough.
State deceptive practices are just like the Federal Trade Commission
Act. They allow civil enforcement actions whether or not the defendant
knowingly or willfully violated the law. In fact, food labeling and
deceptive practices often have exacted strict liability, that is, that
the government can get an injunction whether or not the person was
intentionally or knowingly in violation.
Mr. Chairman, my State of Virginia has a Consumer Protection Act
which prohibits, and I quote, representing that goods and services have
characteristics, ingredients, uses, benefits or qualities that they do
not have or any other conduct which similarly creates a likelihood of
confusion or misunderstanding. A court may order an injunction or
restitution to injured parties, even if the violation was
unintentional.
The fact is Virginia is not alone. Twelve States have adopted the
Uniform Deceptive Trade Practices Act section 3 which says intentional
deception is not necessary to get injunctive relief, and at least 23
other States have similar standards.
So, Mr. Chairman, the amendment I present today will fix the problem.
It will ensure that States can still put an end to mislabeling,
deceptive practices and false advertising within their borders.
Whatever we think of the fast food suits, please do not prevent States
Attorneys General from protecting their citizens.
Mr. KELLER. Mr. Chairman, I move to strike the last word.

[[Page H956]]

I am not going to support this amendment, and I would ask all of my
colleagues to vote no on this amendment on two grounds.
The first ground is that the bill only precludes lawsuits in which
the injury claimed is obesity and weight gain. State consumer
protection statutes are not lawsuits in which the injury claimed is
obesity or weight gain. Rather, in the State consumer protection cases,
the injuries claimed are unfair and deceptive trade practices or
misleading labeling.
However, because the amendment implies that the State consumer
protection laws somehow do allow lawsuits in which the injury claim is
obesity or weight gain, Courts may well read it to grant all State
agencies new power to use their State consumer protection laws to seek
damages against the food industry for obesity-related claims. In other
words, this would essentially gut the bill by allowing State Attorneys
General to bring the very same claims that we are trying to get rid of.
I cannot think of a single State consumer protection law right now
that allows a State agency to sue because someone got fat from eating
too much.
The second ground I object to this amendment on is the gentleman from
Virginia (Mr. Scott) said he does not like the fact we have the knowing
and willful standard. The knowing and willful standard is exactly the
same standard used in H.R. 1036, the Protection of Lawful Commerce and
Arms Act that overwhelmingly passed this House in a bipartisan fashion.
It got 285 votes, and so anyone who voted for H.R. 1036 and who votes
for this amendment will literally be voting for stronger protection for
gun manufacturers than for the food industry, which is the largest
private sector employer, providing jobs to some 12 million Americans.
I urge my colleagues to vote no on this amendment.
Mr. WATT. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, I rise in support of the gentleman from Virginia's (Mr.
Scott) amendment. It seems to me to be absolutely consistent with the
manager's amendment which said that this legislation was not going to
be construed to include an action brought under the Federal Trade
Commission Act.
State consumer protection laws are characteristically State
counterparts to the Federal Trade Commission Act. They are States'
efforts to protect the same kind of things at the State level that the
Federal Trade Commission has jurisdiction over at the Federal level.

{time} 1330

Now, this kind of takes me back to the argument before, I had the
notion that the reason that they really were striking the Federal Trade
Commission Act from the applicability of this proposed law was because
they really did not want this legislation to have to go to the
Committee on Energy and Commerce, so it was more about them not wanting
to delay today's proceedings and not wanting them to let the Committee
on Energy and Commerce, for which there has been a long-standing
tension on many issues between the Committee on the Judiciary and the
Committee on Energy and Commerce, they did not want them to have any
jurisdiction over this.
But if we are going to exclude actions brought under the Federal
Trade Commission Act at the Federal level, in fairness, unless we are
saying to the States that somehow or other they are less attentive to
these issues or less intelligent or have less of an interest in
protecting your citizens than your big brother Federal Government has,
then it seems to me that we ought to be following the same process at
the State level, and it is the State consumer protection laws that are
the equivalent of the Federal Trade Commission Act on the Federal
basis.
So if we are going to be parallel or consistent in our evaluation of
these things, it seems to me that the amendment of the gentleman from
Virginia (Mr. Scott) makes patently good sense. And of course I am not
sure that any of this is designed to make patently good sense, but I
think it is our obligation in this body to at least try to bring some
consistency to it.
Now I am assuming that under the Federal Trade Commission Act, if
there are any individual causes of action, those things would be
protected also. I do not know that. We have not had any hearings on
this to make that kind of determination, but certainly the word
``person,'' as it is defined, would exclude State consumer protection
laws that are typically administered by the attorney general for the
protection of the citizens in that particular State, and perhaps that
is the reason that the State attorneys general are so vigorously
opposed to this legislation. They do not view us or the Federal Trade
Commission as being their big brothers, and more brilliant, sometimes
more arrogant, they would tell you. They think that they serve a pretty
valuable role in this Federal system that we have. Again, we are
dishonoring that role. I urge support for the gentleman's amendment.
Mr. CANNON. Mr. Chairman, I move to strike the requisite number of
words.
I rise in opposition to this amendment. Recently, the food industry
has been targeted by a variety of legal claims which allege businesses
should pay monetary damages and be subject to equitable remedies based
on legal theories of liability for the overconsumption of its legal
products.
In our subcommittee hearings last year, we explored the threat the
food industry faces from frivolous litigation, the threat to personal
responsibility posed by the proliferation of such litigation, and the
need for H.R. 339, the Personal Responsibility in Food Consumption Act.
H.R. 339 currently has 119 cosponsors. A similar bill was signed into
law by Louisiana Governor Mike Foster on June 2, 2003, with huge
bipartisan support. Every Republican in both legislative Chambers voted
for the measure, as did 93 percent of Democrats in the Louisiana House
and 83 percent of Democrats in the Louisiana Senate.
Recent history shows why similar legislation is necessary at the
Federal level. We have seen industries brought to the verge of
bankruptcy by frivolous lawsuits seeking billions of dollars. Today we
have Ralph Nader comparing fast food companies to terrorists by telling
The New York Times that the double cheeseburger is ``a weapon of mass
destruction.'' In a hearing before our subcommittee last year, a law
professor who helped spearhead lawsuits against the tobacco companies
has said of fast food litigation, ``If the legislatures won't
legislate, then the trial lawyers will litigate.''
It is clear that obesity is a problem in America. Equally clear,
however, is the simple availability of high-fat food is not a singular
or even a primary cause. For example, recent findings drawing on
government databases and presented at a scientific conference of the
Federation of American Societies for Experimental Biology biological
showed that over the past 20 years, teenagers have, on average,
increased their caloric intake by 1 percent. During that same time
period, the percentage of teenagers who said they engaged in some sort
of physical activity for 30 minutes a day dropped by 13 percent. Not
surprisingly, teenage obesity over that same 20-year period increased
by 10 percent, indicating it is not junk food that is making teenagers
overweight, but rather a lack of activity.
In short, it is unlikely that lawsuits against food establishments
over their menu offerings will do much, if anything, to make us
healthier. On the other hand, such lawsuits will threaten thousands of
jobs that are today available to teenagers and other entry-level
workers who need those jobs. Further, such lawsuits send the wrong
message regarding personal choices and responsibility. Do we want our
kids growing up believing it is a restaurant's fault that they are
eating too many cheeseburgers?
Besides threatening to erode values of personal responsibility, the
legal campaign against the food industry threatens our notion of
government. Nationally coordinated lawsuits seek to accomplish through
litigation what has not been, and will likely not be, achieved through
legislation.
Last year, the House passed H.R. 1036, the Protection of Lawful
Commerce in Arms Act by a large, bipartisan vote. That bill bars
frivolous lawsuits against the firearms industry for the misuse of
legal products by others. H.R. 339 similarly seeks to bar frivolous
lawsuits against the food industry for overconsumption of its legal
products by others. It is appropriate for Congress to respond to this
growing legal assault on the concept of personal responsibility.

[[Page H957]]

Mr. Chairman, it is not only important, but also fundamental that
Americans have access to courts to redress legitimate wrongs and the
harms they cause. The trial bar serves an invaluable purpose in helping
average Americans gain rightful and proportionate compensation when
harm is done. However, frivolous lawsuits such as the ones this
legislation seeks to prevent serve only to undermine our legal system
and those who truly need its protections.
Mr. Chairman, I urge my colleagues to oppose this amendment and
support the underlying bill, H.R. 339.
Mr. ANDREWS. Mr. Chairman, I move to strike the requisite number of
words.
I would like to speak in favor of the Scott amendment. The wisdom of
the common law has evolved and worked for centuries. It is older than
the United States of America. It is bizarre that this House created one
exception to the common law in the case of gun manufacturers, now it is
trying to create another one in the case of certain food purveyors.
If you can sum up the history of the western jurisprudential system,
it is that common law is usually right and statutory interferences with
common law is usually wrong.
Mr. SCOTT of Virginia. Mr. Chairman, will the gentleman yield?
Mr. ANDREWS. I yield to the gentleman from Virginia.
Mr. SCOTT of Virginia. Mr. Chairman, I think we need to review what
the amendment actually is. In section 4.3, they define person who can
bring these lawsuits as individuals, corporations, companies, but it
includes any governmental entity.
The lawsuits we are talking about are lawsuits arising out of,
related to, or resulting in injury or potential injury resulting from
person's consumption of a qualified product and weight gain, obesity or
any health condition that is associated with a person's weight gain or
obesity, including, and it goes on. This is overly broad.
Let us just read what the amendment says. It says that the Act does
not apply to an action brought by a State agency to enforce a State
consumer protection law concerning mislabeling or other unfair or
deceptive trade practice. We do not need protection from State
attorneys general enforcing our consumer protection laws. I would hope
that we adopt the amendment.
The CHAIRMAN pro tempore (Mr. Ose). The question is on the amendment
offered by the gentleman from Virginia (Mr. Scott).
The question was taken; and the Chairman pro tempore announced that
the ayes appeared to have it.
Mr. KELLER. Mr. Chairman, I demand a recorded vote.
The CHAIRMAN pro tempore. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from Virginia
(Mr. Scott) will be postponed.

{time} 1345

Amendment No. 7 Offered by Mr. Watt

Mr. WATT. Mr. Chairman, I offer an amendment.
The CHAIRMAN pro tempore (Mr. Ose). The Clerk will designate the
amendment.
The text of the amendment is as follows:

Amendment No. 7 offered by Mr. Watt:
Section 3(a), strike ``or State''.

Mr. WATT. Mr. Chairman, the amendment that is being offered simply
strikes two words from the bill. Those words are ``or State.''
This is an opportunity for those of us who really believe in the
Federalist system in which we operate. Those of us who believe truly in
the rights of States to control what happens in their States and in
their communities, those who believe truly in States' rights to get it
right, I am giving you the opportunity.
If there is a rationale for our involvement in this and if there is
something that we should be exercising jurisdiction over, it is what
comes into the Federal courts, and not what goes into the State courts.
So the effect of this amendment is simply to take out the State court
component of this.
I want to confess up front that I think this is a bad idea, whether
it is in the Federal court or the State court; so I am going to vote
against the bill even if this amendment passes. But for those who
believe that this is a good bill, that this is a worthy cause, if you
have any belief in the Federalist form of government in which we
operate, that States and State judiciaries and legislators have certain
powers, then you should be supporting this amendment.
State courts and legislatures are perfectly capable of determining
which lawsuits are appropriate and which lawsuits constitute an
undesired drain on their resources. Right now, 11 State legislatures,
including California, Colorado, Florida, Idaho, Louisiana, Missouri,
Nebraska, Ohio, South Dakota, Washington and Wisconsin, the chairman's
own State, have introduced or passed legislation to ban some form of
obesity-related lawsuits. Some of those States have banned a broader
range of cases than this proposed legislation would ban.
H.R. 339, this legislation that we are considering, would displace
and disrespect the actions of those State legislatures that have acted
and impose a ban on those States that have not perceived a need to
enact legislation banning obesity suits.
The bill arrogantly presumes that State court judges are incapable;
and I am going to keep saying that over, and over and over again. I
have said it a million times; I may say it a million more times before
this debate is over. It is arrogant for us to assume that State court
judges are incapable of carrying out their judicial responsibilities.
Should State court judges determine that any lawsuit lacks merit or
appropriate proof, they can dismiss it. If they determine that a case
is frivolous, they can dismiss it and sanction the attorneys involved.
The proponents of this bill seek to prevent cases that have already
gone through the system and have been dismissed. This bill is a
solution in search of a problem, believe me.
If there is a rationale for this bill, and I do not believe there is,
we at least ought to respect the Federalist form in which we are
operating and limit the application of the bill to cases filed in the
Federal court. We are not Big Brother here in this body, and my
colleagues have reminded us of that many, many times rhetorically. They
say they believe in States' rights. If they do, if you do, my
colleagues, please support the Watt amendment.
Mr. SENSENBRENNER. Mr. Chairman, I rise in opposition to the
amendment.
Mr. Chairman, the gentleman from North Carolina and I have a little
bit different view of the role of federalism in our country. All I can
say is I am happy that his view did not prevail during the great
debates on civil rights that occurred in this Chamber and down the hall
in the Senate Chamber during the sixties, seventies and eighties,
because the notion of States' rights would not have been agreed to by
the gentleman from North Carolina.
I think this amendment must be defeated because it would gut the bill
and also fail to protect the decisions of State legislatures regarding
food policy. I do not think we want to see a single judge in a single
State court deciding to establish national policy. We have seen far too
much of that, and the Watt amendment would allow that type of judicial
misinterpretation to occur in a State court somewhere in this country.
This bill is also about protecting the separation of powers and the
legislative prerogatives of the elected representatives at the State
level. The amendment would gut those provisions.
The drive by overeaters' personal injuries attorneys to blame those
who serve them food and to collect unlimited monetary damages is an
attempt to accomplish through litigation that which has not been
achieved by legislation and the democratic process.
John Banzhaf, a law professor at George Washington University who
helped spearhead lawsuits against tobacco companies, has said, ``If the
legislatures won't legislate, then the trial lawyers will litigate.''
National Public Radio, August 8, 2002.
Various courts have described similar lawsuits against the firearms
industry for harm caused by the misuse of its products by others as an
attempt to ``regulate through the medium of the judiciary'' and
``improper attempts to have the court substitute its judgment for that
of the legislature, something which the court is neither inclined to

[[Page H958]]

nor empowered to do.'' Such lawsuits break down the separation of
powers between the branches of government.
Large damage awards and requests for injunctive relief have the
potential to force the judiciary to intrude into the decision-making
process properly within the sphere of another branch of government,
namely, State legislatures. That is the intent behind these fast-food
lawsuits, to circumvent legislatures, to circumvent the Congress and
the popular will of the people who elect us.
Further, Congress has the clear constitutional authority and the
responsibility to enact H.R. 339. The lawsuits against the food
industry H.R. 339 addresses directly implicate core federalism
principles articulated by the United States Supreme Court, which has
made clear that ``one State's powers to impose burdens on the
interstate market is not only subordinate to the Federal power over
interstate commerce, but is also constrained by the need to respect the
interests of other States.''
Congress can, of course, exercise its authority under the Commerce
Clause to prevent a few State courts from bankrupting the food
industry.
In fast-food lawsuits, personal injury lawyers seek to obtain through
the court stringent limits on the sale and distribution of food beyond
the court's jurisdictional boundaries. By virtue of the enormous
compensatory and punitive damages sought, and because of the types of
injunctive relief requested, these complaints in practical effect would
require manufacturers of lawfully produced food to curtail or cease all
lawful commercial trade in that food in the jurisdictions within which
they reside, almost always outside of the States within which the
States are brought, to prevent potentially limitless liability. Insofar
as these complaints have the practical effect of halting or burdening
interstate commerce in food, they seek remedies in violation of the
Constitution.
Such personal injury attorneys' claims directly implicate core
federalism principles articulated by the Supreme Court in BMW of North
America v. Gore, 1996. The Gore case makes clear that ``one State's
power to impose burdens on the interstate market is not only
subordinate to the Federal power over interstate commerce, but is also
constrained by the need to respect the interests of other States.''
The CHAIRMAN pro tempore. The time of the gentleman from Wisconsin
(Mr. Sensenbrenner) has expired.
(By unanimous consent, Mr. Sensenbrenner was allowed to proceed for 1
additional minute.)
Mr. SENSENBRENNER. Mr. Chairman, the Supreme Court in Healy v. Beer
Institute, 1989, elaborated on these principles concerning the
extraterritorial effects as follows: ``The critical inquiry is whether
the practical effect of the regulation is to control conduct beyond the
boundaries of the State. The practical effect of the statute must be
evaluated not only by considering the consequences of the law itself,
but also by considering how the challenged law may interact with the
legitimate regulatory regimes of other States and what effect would
arise if one, but many or every, State adopted similar laws. Generally
speaking, the Commerce Clause protects against inconsistent laws
arising from the projection of one State regulatory regime into the
jurisdiction of another State.''
So this bill is supported by sound federalism principles, there is a
national interest involved, and that is why the amendment should be
defeated.
Mr. ANDREWS. Mr. Chairman, I rise in support of the Watt amendment.
Mr. Chairman, I must say with respect to the issue of federalism and
the proper role, I think the comparison of this issue to civil rights
is completely inapposite. The principle of civil rights is when State
legislation or State action violates a fundamental constitutional
right, it cannot stand. There is no fundamental constitutional right
involved here. This is the power the 10th amendment expressly meant to
be reserved to the States, either through their legislatures or their
courts.
Mr. WATT. Mr. Chairman, will the gentleman yield?
Mr. ANDREWS. I yield to the gentleman from North Carolina.
Mr. WATT. Mr. Chairman, I thank the gentleman for yielding. The
gentleman puts it a lot milder than I do.
I am not surprised, but I am extremely insulted, that this piece of
crap, this bill, would be put on the same level that our civil rights
laws in this country have been put on.
Now, I am not surprised. I knew that was coming, because we have had
this discussion with my chairman on several occasions on this floor.
But I want you to know that the notion that there are basic
constitutional rights that the civil rights laws had to enact to
enforce was based on rights that were articulated in the Constitution.
The right to vote, and it is a shame that we had to have legislation at
the Federal level to make it clear that the right to vote applied to
all of our citizens in this country, there is no comparison between
this bill and that.
The right to travel on a bus and sit where you want, it is a shame
that we had to have Federal legislation to tell the States that they
had to enforce that basic human constitutional right.
I am insulted that this piece of legislation, and if I went too far
in calling it a piece of crap, I apologize to the Chair. I knew he
shuddered when I said that, so maybe that is going too far. But it is
an abomination for us to be trying to compare this statute to the civil
rights laws.
I am really disappointed that this kind of expansive, unprecedented
interpretation of the Commerce Clause would be articulated by the
chairman of our committee on the floor of the House of Representatives.
Under the theory that has just been advanced, to tie it back to the
Commerce Clause, to tie this legislation back to the Commerce Clause,
anything could be taken over by the Federal Government. There would not
be any State legislatures or State courts. Anything in commerce of any
kind could be taken over.
That is not what the Commerce Clause says. And with all due respect,
I went to law school too. I took my constitutional law under a guy
named Robert Bork. I do not think he would say that is what the
Commerce Clause says.
I am flabbergasted that we would be told on this floor that this
proposed legislation is sanctioned by the Commerce Clause and that it
is anywhere in the ball park close to what the civil rights laws were
designed to do.
We ought be ashamed of ourselves. And we ought be ashamed of
ourselves for destroying the Federal concept that our Founding Fathers
made for us. It would be something else if we were doing it about
something that is real. There is not a single pending lawsuit now
involved that has not already been dismissed. The States are already
acting on this. It is not as if they are ignoring it.
If you were in the State legislature, if you want to go vote on stuff
like this, go to the State legislature. Many of us came out of the
State legislatures. There are people there that are just as smart, just
as intelligent as we are here in this body. For us to insult our State
legislators and our State judiciary for some political purpose is
unforgivable, in my opinion.

announcement by the chairman pro tempore

The CHAIRMAN pro tempore. The Chair would urge Members to exercise
discipline in vocabulary to preserve the decorum of the House.
Mr. KELLER. Mr. Chairman, I move to strike the last word.
Mr. Chairman, I appreciate the enthusiasm of the gentleman from North
Carolina (Mr. Watt), and as the author of the bill that was described
that way, I can assure you that I take no offense. Sometimes in the
heat of passion things come out, so there is no need to apologize to
me.
Let me just say this with respect to the gentleman from North
Carolina (Mr. Watt), he is at least consistent. He offered this same
amendment in committee, made the same arguments, it was rejected in
committee. I urge my colleagues to reject it once again here on the
House floor and for the very same reason.
This amendment would essentially gut the bill and encourage venue
shopping among very creative trial lawyers. Let me just give you one
example.
The Louisiana legislature, which, by the way, is a Democrat
legislature, both the House and the Senate, passed a very similar bill
to mine after I filed mine with 94 percent of the legislators voting
``yes,'' broad bipartisan support.

[[Page H959]]

So, yes, you cannot bring an obesity lawsuit in Louisiana.
So if you are an ambitious trial lawyer, what about Mississippi?
Well, they do not have such a law, and that is exactly where the suit
would be filed, or some other State that is a nice haven for tourists.
We do not have to guess about this, because we had a hearing on this
matter; and the Democrats could have chosen anyone to appear, and they
chose a man named Mr. Banzhaf, who says it is his goal to open the
flood gates of litigation against our major employers such as
McDonald's.
This is what he said. Keep in mind the potential Mississippi lawsuit:
``Somewhere there is going to be a judge and a jury that will buy this,
and once we get the first verdict, as we did with tobacco, it will open
the flood gates.'' We do not have to guess what their theories are;
they have already told us.
So Congress, of course, can exercise its authority under the Commerce
Clause to prevent a few States from bankrupting the food industry,
which is the largest nongovernmental employer in the United States.
Congress, of course, has the authority under the Commerce Clause. That
is not just the opinion of the gentleman from Wisconsin (Chairman
Sensenbrenner) or myself. The U.S. Supreme Court in Healy v. Beer
Institute said, ``Generally speaking, the Commerce Clause protects
against inconsistent laws arising from the projection of one State
regulatory regime into the jurisdiction of another State.''
I urge my colleagues to vote ``no'' on the Watt amendment.
The CHAIRMAN pro tempore. The question is on the amendment offered by
the gentleman from North Carolina (Mr. Watt).
The question was taken; and the Chairman pro tempore announced that
the noes appeared to have it.
Mr. WATT. Mr. Chairman, I demand a recorded vote.
The CHAIRMAN pro tempore. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from North
Carolina (Mr. Watt) will be postponed.

Amendment No. 2 Offered by Mr. Andrews

Mr. ANDREWS. Mr. Chairman, I offer an amendment.
The CHAIRMAN pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 2 offered by Mr. Andrews:
Section 4(4), insert before the period at the end the
following: ``", except that a food that contains a
genetically engineered material is not a qualified product
unless the labeling for such food bears a statement providing
that the food contains such material and the labeling
indicates which of the ingredients of the food are or contain
such material''.

(Mr. ANDREWS asked and was given permission to revise and extend his
remarks.)

{time} 1400

Mr. ANDREWS. Mr. Chairman, the rationale of the underlying bill, with
which I disagree, but the rationale of the underlying bill is that
educated and knowing consumers who make a choice as to what they eat
are responsible for the consequences of what they eat. So that if
someone eats a lot of food that is high in saturated fat and suffers
heart disease or other health-related problems as a result, that they
are responsible for that result, and it should not be the person who
sold them the food. Frankly, I think that the judicial system of the
country is reaching the same answer and does not need our interference
to push them toward that answer, but that is the underlying premise of
the bill. Informed consumer choice trumps litigation.
My amendment is designed to provide an informed consumer choice, and
here is what it says. It says that if a seller of food is selling
genetically-altered food, it can only receive the immunity granted by
this bill if the seller of the genetically-altered food fully discloses
to the person buying and eating the food the fact that it has been
genetically-altered and the nature of the genetic alteration that took
place. Let me explain.
We have had instances where, for example, the cornmeal that is used
for taco shells has been found to be genetically-altered. People have
three objections to this. The first is that they are fearful it will
make them sick. The jury is out on this. There are people who will say
that these foods are dangerous. There are people who will say that the
foods are not dangerous. But there are people who want to make that
choice for themselves as to whether or not they eat genetically-altered
food.
The second problem is that people may have allergies to genetically-
altered food, but if they are not aware of the fact that the food has
been altered in such a way, they may be subjecting themselves to the
health hazards associated with an allergic reaction.
Thirdly, there are people who, for religious or cultural reasons, do
not wish to eat genetically-altered food, particularly if the genes
that are used for that genetic alteration come from a food product that
they do not ordinarily eat as part of their religious or cultural
practices.
So what this bill says is that we offer the food purveyor a choice.
If the food purveyor discloses fully to the consumer the fact that the
food has been genetically-altered and is precise in disclosing the
nature of the genetic alteration, then that food purveyor will enjoy
the immunity granted by this bill. But if the food purveyor chooses not
to make that disclosure, if it chooses not to disclose the fact that
the food has been genetically-altered and chooses not to disclose the
nature of the genetic alteration, well then, under those circumstances,
that food purveyor would not enjoy the immunities granted by this bill.
Mr. Chairman, between 1987 and 2000, the United States Department of
Agriculture authorized 14 field tests of crops engineered with animal
or human genes. An example of some of the combinations being done are
chicken genes in corn, wheat, and Creeping Bent Grass. Human genes in
barley, corn, tobacco, rice, and sugarcane. Mouse genes in corn, along
with human genes. Cow genes in tobacco, carp genes in safflower, pig
genes in corn, Simian Immunodeficiency Virus, or SIV and Hepatitis B
genes in corn.
Now, as I said a minute ago, Mr. Chairman, the jury is out as to
whether there are deleterious health effects with respect to
genetically-altered food. We are going to have scientific evaluation
and come to a conclusion on that question. But I would certainly think
the majority, which believes so strongly in informed choice by
consumers, would extend that principle to this case and would want
consumers to be fully informed that they are choosing genetically-
altered food and they would want them to know the nature of the genetic
alteration. The idea behind this amendment is to encourage that
disclosure, not require it, but to encourage that disclosure by
granting the underlying immunity that is granted in the bill to food
purveyors who make the disclosure and denying the underlying immunity
in the bill to those who fail to make that disclosure.
The argument for this bill, as I understand it, is that personal
responsibility should trump litigation. If you know what you are eating
and you choose to eat it, and you get sick as a result of eating it,
you live with the consequences and you cannot visit those consequences
through civil litigation on the person who sold you the food.
Well, if you accept that underlying principle, then you ought to
accept the argument that in the case of genetically-altered food, the
consumer has the right to know, because if the consumer does not have
the right to know, then the consumer is not making a knowing and
intelligent choice as to what he or she is eating. That has
consequences for potential health risks, it has consequences for
exposure to allergic reaction, and it has consequences for the
religious and cultural practices that many of our fellow citizens and
many other residents of America follow in their dietary practices.
I disagree with the underlying premise of this bill, but I would
implore those who disagree with me on that point to embrace this
amendment, because if you want to support knowing and voluntary choice
in the food you are eating, then let us really make it a knowing and
voluntary choice when it comes to the very controversial question of
genetically-altered foods.
There are many Members of this Chamber who believe that genetically-
altered foods are appropriate. They oppose legislation that would limit
or prohibit the use of genetically-altered foods. There are other
Members who

[[Page H960]]

feel strongly that genetically-altered foods should be limited or
prohibited. Irrespective of where one comes down on that debate, it
seems to me one ought to embrace the position that the consumer has the
right to make that choice.
Mr. Chairman, I urge the adoption of the amendment.
Mr. KELLER. Mr. Chairman, I move to strike the last word.
Mr. Chairman, I am going to ask my colleagues to vote ``no'' on the
Andrews amendment on several grounds. This amendment opposes additional
regulations on the food industry, increasing their cost of doing
business and threatening additional jobs in the food industry, our
Nation's largest private sector employer. But more problematic, the
amendment contains no definitions of what would constitute a proper
label and, therefore, it would expose even those companies who could
afford to comply with the new regulations to lawsuits that would cost
yet more jobs.
This amendment is an attempt to regulate an entire industry with one
clause, and that is a recipe for confusion and disaster. Even companies
who labeled, in an attempt to gain the benefits of the bill, might not
get such protections because some judge somewhere will deem their
attempt to label inadequate, and the amendment provides no standards to
guide either the private sector or judges. Additionally, there is no
definition in the amendment of genetically engineered, so people will
not even know if their products have to comply with these additional
regulations.
Essentially where the gentleman from New Jersey (Mr. Andrews) should
have his day is trying to amend the Federal Food, Drug and Cosmetic Act
and make his changes there, but not here where it is so vague that it
does not have those definitions that would be needed.
Also I would point out that if there is some State statute dealing
with genetically-altered foods and it requires certain labeling and so
on and so forth or advertisement requirements, and if that State
statute is violated, under the provisions of this bill, the claims
could go forward.
So I would ask my colleagues to vote ``no'' on the Andrews amendment
for the reasons suggested earlier.
Mr. WATT. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, I rise in support of the Andrews amendment, and I would
say that this is one of the areas, one of several areas, in fact, that
the processing of this bill without really letting it go through the
Committee on Commerce or without really a whole heck of a lot of
deliberation in the Committee on the Judiciary, and hearings, this is
just one of those areas that might have been dealt with if the bill
were being considered in a serious legislative process, rather than
just a political vehicle.
Mr. ANDREWS. Mr. Chairman, will the gentleman yield?
Mr. WATT. I yield to the gentleman from New Jersey.
Mr. ANDREWS. Mr. Chairman, I thank my friend for yielding, and I
would say to my friend, the gentleman from Florida, who just spoke,
that I respectfully believe that he is in error in two points in
criticizing the amendment. First, he says that my amendment imposes
regulation on the food industry; that is not the case. It provides the
industry with a choice. If it chooses to reach for the immunity granted
by the underlying bill, yes, then it is subject to this disclosure
requirement. But if it chooses not to reach for that immunity, then it
is not subject to the disclosure requirement.
Second, the gentleman is critical of the lack of definitions in the
amendment. I would submit that this amendment will be defined and
interpreted in the same way his underlying bill is, which is to say
there will be litigation over the meaning of ambiguous terms and the
courts will determine what they mean. Unless I am missing something, I
notice that the underlying bill does not define the word ``obesity,''
for example, and there could be a spate of litigation as to whether a
suit is over a product associated with obesity or not, because you
claim it is associated with diabetes or it is associated with heart
disease or it is associated with mental illness. I mean, one could make
a lot of different claims to work one's way around the bill.
As the gentleman knows, and I know he is a skilled attorney, as the
gentleman knows, one of the functions of our judiciary is to provide
case law that defines terms not specifically defined in statute. So no
one should oppose this amendment if they believe that it imposes
regulations on the food industry, because it does not.
I would conclude by saying that when the gentleman says that this
subject matter is best dealt with through the Committee on Commerce and
the Food and Drug Administration, he is right, which is one of the
reasons why we should defeat the underlying bill on the floor.
Mr. WATT. Mr. Chairman, reclaiming my time, I would just say that the
gentleman need not worry about whether there is a definition of
obesity. If they do not like the definition of ``obesity'' that the
courts give, I guarantee my colleagues we will be back here next year
or the year after next with a Federal piece of legislation that is
designed to solve that problem. That is the way this bill is being
processed and the spirit in which it is being processed. Unfortunately,
nobody has any good ideas or can protect their own States, other than
this Congress or my colleagues on this committee, and that is the way
they proceeded.
Mr. SENSENBRENNER. Mr. Chairman, I move to strike the requisite
number of words.
Mr. Chairman, I am very supportive of food labeling requirements,
including labeling requirements for a genetically-modified food, and
would support such legislation if it were coming as an amendment to the
Pure Food, Drug and Cosmetic Act. However, the amendment of the
gentleman from New Jersey is the wrong way to do it, and here is why.
If the amendment of the gentleman from New Jersey passes and the bill
is enacted into law with his amendment, then all someone needs to do to
defeat the immunity that is given to the food industry under this bill
is to simply allege that there was not the proper notice that was
given. This allegation, at least in terms of the preliminary motions in
court, is taken as true, and that sets up a question of fact. All of
the expenses that are needed in terms of defending a lawsuit, such as
depositions and the like, are going to have to be incurred in order to
prove that there was the proper notice given or that there were no
genetically-modified organisms that were supplied in the food that the
plaintiff consumed.
So as a result, in the name of better labeling rather than attacking
this issue as an amendment to the Pure Food, Drug and Cosmetic Act,
which is where I think it belongs, the gentleman attempts to have what
is in the jurisdiction of another committee and which deals with
another enactment on the statute books of the United States of America
through this method.
I would support the gentleman from New Jersey if he was doing it the
proper way through an amendment to the Food, Drug and Cosmetic Act, but
this is not the way to do it.
Now, secondly, there is nothing in the gentleman's amendment that
says what constitutes an adequate notification. Does an adequate
notification consist of the nutritional sign on the wall of a fast food
restaurant that talks about ingredients and that nobody stands and
stares at unless the line is so long that they have to do it? Does it
require that there be this kind of a label on every package that is
handed to the customer with the food contained in it? These are the
types of things that really should not be left up to the courts to, in
their infinite imagination, determine what is adequate and what is not;
it should be done in the proper way by the proper committee, and that
is why this amendment ought to be rejected.

{time} 1415

Mr. DOOLEY of California. Mr. Chairman, I move to strike the
requisite number of words.
(Mr. DOOLEY of California asked and was given permission to revise
and extend his remarks.)
Mr. DOOLEY of California. Mr. Chairman, I also rise in opposition to
this amendment. I do not think this is the proper vehicle for us to be
attaching this to. The issue of genetically enhanced products is
something that we have spent a lot of time on. I think our existing
regulatory structure gives us the opportunity to really get

[[Page H961]]

verification in whether or not any of these new approaches do pose any
health risk to consumers.
And I think now we can have great confidence that the products that
are coming onto the market, that are containing genetically enhanced
products are, in fact, determined to be safe for human consumption.
I think when we have an amendment such as this it poses, I think, a
situation where we will actually impede the development of an industry
and of a technology that has the potential to actually have tremendous
benefits in dealing with the obesity problem that we have in this
country.
There are a number of genetically enhanced products that are being
developed now that are going to result in some of our oils being
lowered and some of the trans fats and saturated fats that actually can
be incorporated into some of our food products that are going to result
in less obesity.
I think we would be running the risk of setting back the industry and
setting back some of the developments in new technology that actually
could be a benefit in improving the nutrition of a lot of our food
products and this amendment would actually pose an impediment, would
impose a liability that would deny some of these new developments that
actually can be of great benefit in terms of enhancing the nutrition
that a lot of our citizens are consuming.
Mr. Chairman, I hope we will oppose this amendment.
Mr. GOODLATTE. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, I rise in strong support of H.R. 339, the Personal
Responsibility in Food Consumption Act and in strong opposition to the
amendment offered by the gentleman from New Jersey (Mr. Andrews).
The food service industry employs some 11.7 million people, making it
the Nation's largest employer outside of the government. However, this
vital industry has recently come under attack by waves of lawsuits
arguing it should be liable for the misuse or overconsumption of its
legal products by others.
Frivolous lawsuits require businesses to devote crucial resources to
litigate unmerited claims. In order to help ensure that America
continues to be an advantageous place to do business, and to help
create and maintain American jobs, it is important that we not allow
opportunistic trial lawyers to extort money from legitimate companies.
Simply put, businesses in the food industry should not be held
responsible for the bad eating habits of consumers. The people of
America agree. According to a recent poll, approximately 89 percent of
Americans oppose holding the fast-food industry legally responsible for
the diet-related health problems of people who eat fast food on a
regular basis.
H.R. 339 will help prevent frivolous lawsuits against the foods
industry while preserving State and Federal laws. Specifically, the
bill would prevent frivolous lawsuits that claim that the consumption
of lawful food products cause injuries resulting from obesity or weight
gain.
While the bill would prohibit frivolous lawsuits, it would protect
legitimate ones. For example, the bill would not protect businesses
that knowingly or willfully violate a State or Federal statute when the
violation is a proximate cause of an injury. In addition, the bill
would not protect those that violate State or Federal food labeling
laws or those that offer adulterated food products.
H.R. 339 is a commonsense bill that will protect legitimate
businesses from frivolous lawsuits. I urge my colleagues to support
this important legislation. But the amendment offered by the gentleman
from New Jersey (Mr. Andrews) runs the risk, if it is passed, of
gutting this legislation.
The reasons set forth by the gentleman from Wisconsin (Mr.
Sensenbrenner), who has done an outstanding job bringing this
legislation to this point, are all valid reasons for opposing this
amendment; but in addition there are more. There is absolutely no
reason why we have to draw a distinction between two different types of
perfectly legitimate products that the appropriate regulatory agencies
have found to have no ill effect upon consumers. There would be no
difference whether it was a natural product or whether it was one that
had been changed through hybridization and all the other ways that we
have improved food through the decades, in fact through the centuries,
or through biotech-enhanced foods either.
And so for that reason, I strongly oppose this. If the amendment were
to pass, it is a back-door way to try to impose labeling in this
country. We have opposed this for a long time because there is no
distinction between foods that contain biotech crops and those that do
not. And the issue is very clear that if you will require it, virtually
every product produced in this country made with corn, virtually every
product made in this country using soy beans, virtually every product
grown in this country with any kind of livestock that have been
enhanced, and virtually any kind of product that may be developed in
the future, there would become a disincentive to produce these improved
products, as the gentleman from California (Mr. Dooley) just correctly
noted.
This is a huge problem. It would effectively gut this important
legislation. H.R. 339 generally prohibits obesity or weight-gain-
related claims against the foods industry. This amendment would require
manufacturers to label genetically engineered material before being
afforded the protections of the underlying bill. The irony is that, as
the gentleman from California (Mr. Dooley) noted, the opportunity
exists with genetically modified food to improve the problem for people
who have obesity, not to make the problem worse.
So I do not understand how this amendment relates to H.R. 339.
Biotech crops do not lead to obesity. In fact, biotech research may
lead to food products that help combat the obesity problem in America
and nutrition problems in the developing world.
Farmers have been growing hybrid and other genetically engineered
crops safely for decades. Biotechnology is as safe as conventionally
bred crops, according to numerous studies by the National Academy of
Sciences, the American Medical Association, and other scientific
bodies.
Furthermore, before biotech foods can be sold to consumers, their
safety is reviewed by three government agencies: the U.S. Department of
Agriculture, the Environmental Protection Agency, and the Food and Drug
Administration.
The Andrews amendment runs counter to long-standing U.S. Government
food labels policy which preserves food labels for help safety and
nutritional information. This amendment is just another ill considered
attempt to discourage consumption of biotech foods, which every
American, every American consumes on a daily basis and encourages
frivolous lawsuits.
I urge my colleagues to oppose this amendment.
The CHAIRMAN pro tempore (Mr. Ose). The question is on the amendment
offered by the gentleman from New Jersey (Mr. Andrews).
The question was taken; and the Chairman pro tempore announced that
the noes appeared to have it.
Mr. ANDREWS. Mr. Chairman, I demand a recorded vote.
The CHAIRMAN pro tempore. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from New Jersey
(Mr. Andrews) will be postponed.

Amendment No. 3 Offered by Mr. Inslee

Mr. INSLEE. Mr. Chairman, I offer an amendment.
The CHAIRMAN pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 3 offered by Mr. Inslee:
Section 4(5)(A), insert after ``knowingly and willfully''
the following: ``or negligently''.

Mr. INSLEE. Mr. Chairman, I think there is a bipartisan consensus
here today that educated and informed consumers regarding what is in
their food should not have a claim relating to obesity and that we
would all attempt to write a law that will effectuate that goal. But as
Mark Twain said, the difference between the right word and almost the
right word is the difference between lightening and a lightning bug.
And the difference between a well-crafted bill and one that misses the
mark a little bit is the difference between a radical restructuring of
civil

[[Page H962]]

liability law in the United States and a bill that we want to produce.
And, unfortunately, this bill lacks two words. And our amendment would
cure that defect.
Mr. Chairman, it is a very well-accepted principle, if I can compare
this scenario, it is a very well-accepted principle that in America if
a person is inattentive for a few moments and violated a law by going
through a stop sign, they are responsible to the injured party for the
wreck. It is a very well-accepted principle that if a person who
manufactures jet airplanes is inattentive for a moment, and they fail
to put a bolt on an engine and the engine falls off and 250 people are
killed, they are legally, or their corporation is legally, responsible
for that violation of the law.
It is clear at this moment that if an employee of a company is
inattentive and puts the wrong information on the box of a food or a
bench or a medical product and someone dies as a result, that
corporation is liable for their inattention.
But because of the absence of the word ``negligence'' in this bill,
we would have removed liability for that very, very well-accepted
principle. Let me tell you why that is important. Take the case of
Steve Beckler, former pitcher for the Baltimore Orioles who took a
product called Xenadrine RFA-1. It is a dietary supplement, and it
appears to be covered under the definition of food of this statute or
proposal. It was sold and Mr. Beckler died. It was advertised as having
the quality of a rapid fat-loss catalyst. The medical examiner
concluded that his death was a proximate result of this medication.
Now, I do not know exactly about the circumstances of the warnings or
lack of warning on that product; but under this bill as currently
drafted without the Inslee amendment, if the clear testimony was that
the label that said do not take this if you have high blood pressure
was left off due to inattention, there would not be a responsibility.
And the widow of this gentleman would be out of luck.
If, in fact, someone violated the clear mandate of Congress or a
State legislative body to give a specific warning that is identified in
law, and if that warning did not get on the product, the victim would
still be out of luck.
And I want to make sure people understand this. By inserting the word
``negligence'' into this bill, we will not be giving jurors the right
to determine what warnings or information should be on the product.
That is not giving jurors that ambit. All this will say is if my good
friend, the gentleman from Wisconsin (Mr. Sensenbrenner), the gentleman
from North Carolina (Mr. Watt), and all of us get together and we pass
a law that certain information has to be on the box, like do not take
this weight loss supplement if you have high blood pressure, or do not
take it if you have evidence of stroke or previous history of stroke,
and due to someone's inattention or the fact that they were asleep at
the switch or they just were not doing their job, the victim will not
have a claim under law. And I do not think that is what the majority of
us ought to be about if we are imposing this obligation.
I ask the majority party, let me just pose this as a friendly
question to my friends, if indeed we pass a bill here that requires,
for instance, that a warning be on a weight-loss product that says do
not take this weight loss product if you have an evidence of high blood
pressure, and if an employee is asleep at the switch or is inattentive
at the brief moment and the product goes out without the label and
somebody dies, I am asking the majority party why the widow or family
of such a victim who died as a result of an obligation we voted to
impose in United States Congress, why do you intend to deny that person
a remedy? That is an open question to anyone in the majority.
Mr. KELLER. Mr. Chairman, will the gentleman yield?
Mr. INSLEE. I yield to the gentleman from Florida.
Mr. KELLER. Mr. Chairman, that scenario you just posed about someone
taking some kind of improperly labeled diet drug has nothing to do with
this legislation. That claim would still go forward and be unimpacted.
This legislation specifically is narrowly targeted to claims based on
weight-gain or obesity.
Mr. INSLEE. Mr. Chairman, I reclaim my time.
The CHAIRMAN pro tempore. The gentleman's time has expired.
Mr. KELLER. Mr. Chairman, I move to strike the last word.
Mr. Chairman, at the committee there was an attempt to strike the
knowing and willful standard from the bill. That was unsuccessful. I
would ask my colleagues to vote ``no'' on this amendment as well, which
is kind of a new twist there, keeping the knowing and willful, but then
they also add ``negligently,'' which in effect does the same thing,
strike it. So all you have to do is prove negligence.
This bill already allows a case to go forward any time a Federal or
State statute has been knowingly and willfully violated and that
violation is a proximate cause of the injury.

{time} 1430

Let me tell you why it is important to have this knowing, willful
standard and what the precedent is.
The knowing and willful standard is the exact same standard used in
H.R. 1036, the Protection of Law Commerce and Arms Act that
overwhelmingly passed this House in a bipartisan fashion. In fact, it
received 285 votes. Therefore, anyone who voted for H.R. 1036 and who
votes for this amendment will be voting for stronger protections for
firearms manufacturers than for the food industry, which is the largest
private sector employer in the country providing 12 million jobs.
The claim that it is too burdensome to require a person to knowingly
violate a law before they can be said to meet the exceptions to this
bill, fails to understand the flexible nature of the requirements. Let
me give you an example. A typical jury instruction regarding what the
so-called mens rea requirement for knowing means states as follows:
``Knowledge may be proved by all the facts and circumstances
surrounding the case. You, the jury, may infer knowledge from a
combination of suspicion and indifference to the truth. If you find a
person had a strong suspicion that things were not what they seemed or
that someone had withheld important facts yet shut his eyes for fear of
what he may learn, you may conclude that he acted knowingly.''
Therefore, the knowing standard is certainly flexible enough to
produce justice in our courts in all circumstances. There is precedent
for it, and it should be used here as well. I also would point out that
under the bill, claims can go forward for breach of contract, or breach
of warranty as well.
I ask my colleagues to vote ``no.''
Mr. WATT. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, I rise in support of the gentleman from Washington's
(Mr. Inslee) amendment; and I want to yield to him, but I want to make
one comment before I do so.
My colleague, the sponsor of this bill, has on several occasions told
us a persuasive, powerful reason for doing something related to this
bill is something that we did related to H.R. 1036. First of all, many
of us voted against H.R. 1036. It did pass this body, but then it went
to the Senate and the Senate jettisoned the bill. So to use as some
powerful reason that something is in a bill that had not even gone
through the legislative process, was not even worthy of sending to the
President's desk for signature, strikes me as being about as far a
stretch as saying that this bill is about employment rather than
politics.
Mr. Chairman, I yield to the gentleman from Washington (Mr. Inslee).
Mr. INSLEE. Mr. Chairman, I want to again reiterate I think there is
a mutual desire to try to find the right language that will accomplish
our mutual end, but this bill does not use the right language to do it.
I want to respond to the gentleman from Florida's (Mr. Keller)
statement that my situation was inappropriate. I think I would refer
the gentleman to the language of section 5 which cuts off claims for a
whole host of injuries including ``any health condition that is
associated with a person's weight gain or obesity.''
Any health condition that is associated with a person's weight gain
or obesity. The fact of the matter is if someone forgets to put the
label on that says do not take this if you have high blood pressure,
and you gain weight and your high blood pressure

[[Page H963]]

goes through the roof, you have a claim associated to your obesity.
There is no reason to have to include that language. And if you are
going to include that language, you ought to at least include the well-
accepted principle of American jurisprudence in 50 States which is
this:
If someone refuses to honor the legal mandate for conduct that the
U.S. Congress imposed due to inattention or negligence, there is legal
responsibility for that. And for the first time as I know it, and I
think the gun law is not applicable because that applied to creating an
obligation through the obligation of exercising reasonable care, what
this amendment does is say if Congress imposes an obligation to say X,
Y or Z, it is not the jurors coming up with that obligation to say
something on the label. We are simply saying if you do not follow the
law, there is a responsibility.
I am asking my colleagues to consider this closely for an additional
reason. Yesterday, Julie Gerberding, the director of the Federal Center
of Disease Control and Prevention said, ``Obesity is catching up to
tobacco as the leading cause of death in America. If this trend
continues, it will soon overtake tobacco. This is a tragedy,''
Gerberding said. ``We are looking at this as a wake-up call,''
suggesting that over 500,000 deaths annually will occur due to obesity.
Now, in light of this scientific information, what is the first thing
the House of Representatives does? It rushes to immunity for
corporations, which may be appropriate in this particular case; but let
us show a little care how we define which cases, so the people who die
as a result of negligence and people asleep at the switch and their
refusal to do what Congress told them to do are not swept up in this
bill.
Mr. WATT. Reclaiming my time, I would just reiterate the points that
the gentleman from Washington (Mr. Inslee) has made and suggest to him
and the body and the chairman that it is unfortunate that the Committee
on the Judiciary in the House has become the repository of everything
essentially political. And so two things quite often result from that:
number one, just about every vote is a party-line vote because we know
that there is a political reason, not a substantive reason that the
legislation is being put forward.
The CHAIRMAN pro tempore (Mr. Ose). The time of the gentleman from
North Carolina (Mr. Watt) has expired.
(By unanimous consent, Mr. Watt was allowed to proceed for 2
additional minutes.)
Mr. WATT. Number two, it quite often puts us in a position of
thinking, well, this legislation is not serious and it is not going
anywhere anyway, and as happened with the legislation that has been
referred to on several occasions here, well, the United States Senate,
the more deliberative body, will bail us out and save us from
ourselves.
I think that is a dangerous slippery slope that our committee has
gotten on, and I wish there was some way to pull us back from that so
that we would in our committee anticipate, have hearings, and deal with
the kind of serious problem that has been identified by the gentleman
from Washington (Mr. Inslee) here; and it would not be just a question
of whether the sponsor of the bill thinks that this does not apply or
may not apply. Maybe under those circumstances the committee and its
members would look at what this stuff really says, the bill, look at
the drafting of the bill. That is part of our responsibility as
legislators, and it is even more a part of our responsibility as
members of the Committee on the Judiciary; and I fear that we have
failed in that responsibility.
Mr. SENSENBRENNER. Mr. Chairman, I move to strike the requisite
number of words.
Mr. Chairman, listening to the gentleman from Washington (Mr. Inslee)
I think shows the differences between those of us who support this
legislation and those of us who oppose this legislation.
First, the example that he used relative to the professional baseball
player who unfortunately passed away, this bill does not apply to. It
is a complete unrelated argument and the gentleman from Florida (Mr.
Keller) has pointed that out. But the gentleman from Washington (Mr.
Inslee) persists on using this as an example. And then the gentleman
from Washington (Mr. Inslee) quotes the story of the press conference
that was held yesterday relative to obesity catching up to tobacco as
the number one killer of people in the United States of preventable
conditions.
Now, the problem with that attitude is that those who espouse it
expect the government to take over personal responsibility. The victim
always finds someone else to blame for his or her own behavior. And
what this bill does is that it says, do not run off and file a lawsuit
if you are too fat and you end up getting the diseases associated with
obesity. It says, look in the mirror, because you are the one who is to
blame. And I have referred twice to a doctor in North Carolina and to
the woman who is the president of the American Council on Fitness and
Nutrition in saying that if you are obese, do not get a lawyer. See
your doctor. See a nutritionist. See a personal trainer. And what this
bill does is it will pin the responsibility of those whose job it is to
correct the problem to begin with and that is the person who caused the
condition which could have been preventable.
Mr. Chairman, I yield to the gentleman from Florida (Mr. Keller).
Mr. KELLER. Mr. Chairman, to go back to the gentleman from
Washington's (Mr. Inslee) question about the diet drug, I have
explained it does not apply. It talks about ``a person's consumption of
a qualified product.'' What is that? That is food under the definition.
Food means articles used for food or drink, chewing gum and articles
used or components of such article.
The second part of it is of a weight gain, obesity or any health
condition that is associated with a person's weight gain. What are the
health conditions associated with a person's weight gain? High
cholesterol, for example, diabetes, for example, cardiovascular
disease. This has nothing to do with diet drugs or labeling of diet
drugs or mislabeling. Whatever that person's claim under State law for
negligence can go forward and is completely and totally unrelated to
this bill.
Mr. TIERNEY. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, I yield to the gentleman from Washington (Mr. Inslee).
Mr. INSLEE. Mr. Chairman, I want to respond to my friend, the
gentleman from Wisconsin's (Mr. Sensenbrenner) appropriate reference to
the idea of accountability because, as I said, we on a bipartisan basis
ought to be able to craft a bill that appropriately says if a person
has information about their food and they are not personally
responsible and become obese due to their own lack of personal
responsibility, they should not have a claim. And I am first to say
that, or second or third. But there is another personal accountability
that the way this bill is drafted ignores. And that is that if the
gentleman from Wisconsin (Mr. Sensenbrenner) and I both voted for a
bill that imposed a personal legal responsibility to put on every
package of phenadrine or any other product that you can think of that
says do not take this if you have history of a stroke, and they do not
do this, and this is not a jury-imposed obligation, it is one imposed
by the gentleman from Wisconsin (Mr. Sensenbrenner) and myself,
together, and they fail to do it, they ought to be held accountable
because accountability and personal responsibility work two ways in our
society.
Hold the person who has information about fatty products and they get
fat because they are irresponsible, hold them accountable and they have
no claim, and this bill should accomplish that end. But for the person
who refuses to abide by the mandate of this Congress what to put on
food products, they should be held accountable for their lack of
responsibility; and this bill clearly obviates that in the language
that says ``any health condition that is associated with a person's
weight gain or obesity.'' You are cutting off, perhaps unintentionally,
claims for injury due to high blood pressure, stroke, cardiac arrest
and a whole other group of diseases associated with weight gain.
Frankly, I do not think you are intending to do that. Because if I
think that you think your constituents, if somebody fouls up a label
and they die due to a stroke, I do not think you intend to cut that
off; but you are doing

[[Page H964]]

it. And it is unfortunate, and I wish you would help me fix it.
The CHAIRMAN pro tempore. The question is on the amendment offered by
the gentleman from Washington (Mr. Inslee).
The amendment was rejected.

Amendment No. 1 Offered by Mr. Ackerman

Mr. ACKERMAN. Mr. Chairman, I offer an amendment.
The CHAIRMAN pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 1 offered by Mr. Ackerman:
Section 4(2), insert after the period at the end the
following: ``However, such term shall not include any
slaughtering, packing, meat canning, rendering, or similar
establishment that manufactures or distributes for human
consumption any cattle, sheep, swine, goats, or horses,
mules, or other equines, that, at the point of examination
and inspection as required by section 3(a) of the Federal
Meat Inspection Act (21 USC 603(a)), are unable to stand or
walk unassisted at such establishment.''.
Section 4(6), insert after the period at the end the
following: ``However, such term shall not include any
slaughtering, packing, meat canning, rendering, or similar
establishment that distributes for human consumption any
cattle, sheep, swine, goats, or horses, or mules, or other
equines, that, at the point of examination and inspection as
required by section 3(a) of the Federal Meat Inspection Act
(21 USC 603(a)), are unable to stand or walk unassisted at
such establishment.''.

Mr. ACKERMAN. Mr. Chairman, this amendment has nothing to do with
trial lawyers or any other issue that has been basically discussed here
today, but it is merely to correct what I think is an inadvertent
omission in the bill.
My amendment would expand the definitions in the act to exclude any
establishment that manufactures or sells meat from downed animals for
human consumption from the protections of the bill.
Mr. Chairman, nearly 3 months have passed since the first mad cow was
discovered in the United States and the very first food-related bill
has reached the House floor. It is not a bill to protect the American
people from mad cow disease and to safeguard the food chain, but it is
instead a bill to protect lawsuits against food manufacturers for
injuries related to weight gain.

{time} 1445

With America's food and meat supply at risk, it is embarrassing that
this special interest legislation is our first response to reforming
food safety in the United States.
The USDA banned downers from the food supply noting that a non-
ambulatory animal was 49 times more likely to have mad cow disease, and
they issued a regulation banning it. Those who oppose this amendment
will tell us that the amendment is not necessary because the bill
before us already says companies that knowingly violate Federal or
State law get no protection in the bill and that the USDA banned
downers, but the USDA is not the Congress and a USDA ban on downers is
not the law. It is merely a regulation.
So this amendment is needed to make it a law, as was, I believe,
intended. Otherwise, slaughterers who knowingly violate the regulation,
not a law, get protection from legal action for selling diseased meat
from mad cows to someone whose brain may rot some 8 years from now.
In the aftermath of our first discovery of mad cow disease, Americans
deserve more from Congress than just a bill preventing frivolous
lawsuits which have already been successfully defeated in U.S. courts.
Instead, we should be working to assure our constituents that the meat
they are eating and feeding to their children is safe and free of mad
cow disease.
Personal responsibility, yes, add me to the long line of people who
have already said that they believe in it, but people should take
personal responsibility from acts that they knowingly take and
knowingly violate and voluntarily take.
A person cannot know that they are eating the meat of a sick animal
because it is not labeled, and that is another issue. What about
personal responsibilities of companies that knowingly sell meat from
downers, from diseased animals, too sick to walk to the slaughter? We
could take personal responsibility if the corporations took personal
responsibility and put labels that said the meat we are eating is from
a diseased downed cow or that the meat we are about to eat had a 99
percent chance of never being inspected.
According to a Consumers Union poll, seven in 10 Americans who eat
meat say they would pay more for beef to support increased testing in
the cattle, and in a Zogby poll, three out of four Americans find it
unacceptable to have downed animals in our food system. In fact, the
USDA tells us that it was a downed animal from Washington State that
proved positive for mad cow disease this past December, and early last
year in Canada, the infected mad cow was also a downed animal. That is
not a coincidence.
The USDA ban on slaughtering downed animals for human consumption is
based on sound science and is nearly identical to the Ackerman-
LaTourette amendment that failed just three votes short of passage in
this House in the past summer, and that was before the discovery of mad
cow disease in the United States. Surely there are three more people in
this House who now better understand this issue.
Mr. Chairman, we should not be passing bills to protect the
irresponsible establishments that may knowingly sell meat from sick and
fallen animals. This amendment would ensure that manufacturers and
sellers who ignore the proven health risks from downed animals who
ignore the USDA ban, not a law, and sell tainted meat from downed
animals to the American public, are not protected from lawsuits under
this Act. I do not believe that was the intention.
Mr. Chairman, the time is long overdue for this issue. This issue is
so ripe it is beginning to get rotten. The American people deserve
better than that, Mr. Chairman, and this Congress has the opportunity
to act right now to do the right and proper thing to protect all of our
constituents from an inadvertency that occurs within this bill.
Mr. SENSENBRENNER. Mr. Chairman, I rise in opposition to the
amendment.
Mr. Chairman, this bill provides for a specific exemption for
adulterated food, and anybody who eats meat which may have been
infected with mad cow disease and comes down with the human variant of
mad cow disease under this bill will have a cause of action against
those who are responsible.
Secondly, if a person eats an adulterated hamburger and becomes
seriously ill or perhaps dies of salmonella infection, this bill does
not apply. The survivors will have a cause of action against those who
provided the adulterated meat in the food chain.
What this bill does apply to is lawsuits that currently can be filed
as a result of people eating too much, becoming obese and coming down
with the diseases that are associated with obesity. That has nothing to
do with downer cattle. It has nothing to do with mad cow disease. It
merely means that people who have eaten too much cannot go back at
those who have sold or provided a legal product in legal commerce.
Now, I wish that this debate would concentrate on the issues that are
posed in this bill. The issue that the gentleman from New York (Mr.
Ackerman) has brought up is a very serious issue, but that issue is not
presented in this bill, and if the gentleman from New York would look
at page 6, lines 9 through 12 inclusive of the bill as reported by the
Committee on the Judiciary, he would see that exemption there plain as
day.
Mr. WATT. Mr. Chairman, I move to strike the last word.
The chairman of our committee may be correct about that part of the
bill, but only if the manager's amendment passes, I think would he be
correct in what he has said, and at this point, while all of us are in
support of the manager's amendment, I guess until this bill passes, I
mean, we are still here.
Mr. ACKERMAN. Mr. Chairman, will the gentleman yield?
Mr. WATT. I yield to the gentleman from New York.
Mr. ACKERMAN. Mr. Chairman, I thank the gentleman for yielding, and
then again, the distinguished Chairman of the committee, although very
knowledgeable, may very well be wrong.
I am holding the page with the very lines that he asked me to refer
to, and what it basically does is it refers to

[[Page H965]]

government action, government action against those companies, not
individual actions of those people. The government is not getting sick
or certainly not getting sicker from eating the meat of diseased
animals, but human beings are denied under this, not the government.
Human beings who have eaten diseased meat from downed animals have no
recourse under the law the way this is written.
Yes, if a person gains weight, and some of us have done that, from
eating wrong and indulging a little bit too much, sometimes that
evidence is all too evident, but when a person eats the meat of a
diseased animal, they have already eaten the evidence, and the case is
difficult enough to prove.
People have no protection, no ability to sue, and the gentleman, what
he sought to do, if he rereads what he has asked me to do, he will see
very, very clearly that they are not exempted from government action,
but they are still protected from private citizens bringing private
courses of action.
Mr. WATT. Mr. Chairman, reclaiming my time just for a second, because
when we are in the middle of a debate and we are trying to figure out
the impact of amendments and coordinate them, it becomes a little
unclear what is happening.
The original bill did say that an action regarding the sale of a
qualified product which is adulterated, as described in section 402 of
the Federal Food, Drug and Cosmetic Act was one of the things that was
not covered under the base bill. The manager's amendment, however,
struck that language and inserted instead, such terms shall not be
construed to include an action brought under the Federal Trade
Commission Act. It makes no reference to adulterated, I believe. Maybe
I am misreading this, but this is one of those things where I think we
should take absolutely no chance.
Even if it is redundant in some way, it clearly was not intended and
I would hope that my colleagues would just accept the amendment. If it
turns out to be redundant, then there are a whole bunch of things in
the law that are redundant. That has never been something that we have
shied away from. If we want to make something patently clear, we quite
often make it redundant. We might say it three, four or five times in
the same statute, and this is a point that I think needs to be made
patently clear.
I yield back to the gentleman from New York (Mr. Ackerman).
Mr. ACKERMAN. Mr. Chairman, the distinguished chairman assured us at
the outset of his remarks that private citizens would not be precluded
from bringing private actions. It is very clear, to at least some of us
who read the language of what is in the actual bill, that that is what
happens, but given the chairman's genuine assurance that citizens would
not be precluded, I fail to see what harm would be done if we
specifically say that people have a right to bring action against those
companies that knowingly and willfully sell meat from diseased fallen
animals to the consuming public.
Mr. WATT. Reclaiming my time, the gentleman seems to be shaking his
head yes. Maybe that means he is going to accede to the argument. If he
is, I am happy to yield to him for that purpose.
Mr. KELLER. Mr. Chairman, it is not worth yielding then. I am not
going to accede to this.
Mr. WATT. The gentleman is not there yet. In that case, I hope he
will get there, because if there is any ambiguity in this, we need to
make sure that it is cleared up, and I think it is very ambiguous at
this point. I would rather have a redundant provision in the bill than
to have an ambiguous or no provision in the bill.
Mr. KELLER. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, I am going to ask that my colleagues vote ``no'' on the
Ackerman amendment on three separate grounds.
First, the concept of adulterated food claims are specifically
allowed, both under the base bill, where it specifically says
adulterated in section 402 of the Federal Food, Drug and Cosmetic Act,
and under the manager's amendment, which specifically says that the
term ``qualified civil liability action'' does not include an action
brought under the Federal Trade Commission Act or the Federal Food,
Drug and Cosmetic Act.
Under the Federal Food, Drug and Cosmetic Act, it specifically
defines adulterated food in section 342. A food shall not be deemed to
be adulterated if it is considered in whole or part of any filthy,
putrid or decomposed substance, which, clearly, mad cow disease or e-
coli or anything else would be considered.
The second reason to reject this that it does not apply is the
language of this particular bill expressly says that we are talking
about claims relating to weight gain, obesity or any health condition
that is associated with weight gain or obesity: diabetes, high
cholesterol, heart disease. It does not have anything to do with mad
cow disease. If a person eats a mad cow burger, their claim goes
forward. If a person eats an e-coli burger, their claim goes forward.

{time} 1500

A final reason. The gentleman says, well, if that is the case, why
does the gentleman care about my amendment? Well, let me address that
as well.
This amendment would exclude from the protections of the bill any
company that uses particular methods to slaughter perfectly healthy
animals. For example, if a company during the slaughtering process
places cattle in positions, like in a coral, in which they cannot walk
unassisted, then these perfectly law-abiding companies that make meat
from perfectly healthy animals would be unfairly excluded from the
bill. That is wrong.
Perfectly healthy animals may be unable to stand or walk unassisted
during the production process, so this amendment unfairly excludes many
law-abiding sellers or perfectly healthy meat from perfectly healthy
animals.
For the aforementioned reasons, that it is not needed; and even if it
was, it is inappropriate.
Mr. WATT. Mr. Chairman, will the gentleman yield?
Mr. KELLER. I yield to the gentleman from North Carolina.
Mr. WATT. Mr. Chairman, I am just wondering whether we have the right
manager's amendment, because I do not for the life of me see any of
what the gentleman just described as being in the manager's amendment,
or in the amendment that I have. Perhaps I have the wrong one.
The manager's amendment I have substitute language that says nothing
about adulteration.
Mr. KELLER. Reclaiming my time, Mr. Chairman. The manager's amendment
specifically says, ``Such terms shall not be construed to exclude an
action brought under the Federal Trade Commission Act or the Federal
Food, Drug and Cosmetic Act.'' I read the gentleman a section under the
Federal, Food, Drug and Cosmetic Act dealing with adulterated products.
Mr. WATT. Mr. Chairman, if the gentleman will continue to yield, is
it not true that only the government could bring an action there? It
would not be an individual action. And would that not be the exact
point that the gentleman from New York (Mr. Ackerman) is making?
Mr. KELLER. Reclaiming my time once again, Mr. Chairman, I still, on
the other grounds I mentioned earlier, it is still not needed because
we are not talking about a claim based on weight gain or obesity.
Mr. ACKERMAN. Mr. Chairman, will the gentleman yield?
Mr. KELLER. I yield to the gentleman from New York.
Mr. ACKERMAN. Mr. Chairman, I think the gentleman is overlooking
something. The government brings lawsuits for violation of the FDA act.
Individuals cannot bring actions under the FDA act. Individuals bring
civil cases under the tort laws, and that is what we are talking here.
This bill allows the government to bring a lawsuit. I want Mrs. Jones
to be able to bring a lawsuit because her 8-year-old son was just made
brain damaged and is going to die in 3 months because he ate a
hamburger that somebody knowingly sold him that came from a downed
animal that had mad cow disease. They cannot do that under this act
because they are not the government.
Mr. KELLER. Mr. Chairman, reclaiming my time, and I respect the
gentleman's enthusiasm, but his claim that that would be barred is
patently

[[Page H966]]

untrue. Brain damage or death as a result of eating meat from an animal
with mad cow disease is not a claim for weight gain or obesity. It is
just totally not. It has nothing to do with this.
Mr. ACKERMAN. Mr. Chairman, if the gentleman will continue to yield,
I would then ask, Why is the gentleman protecting companies that allow
that?
Mr. KELLER. Why do people allow mad cow burgers to be sold? I do not
know that any company does knowingly allow mad cow burgers to be
served.
Mr. ACKERMAN. We do not prevent it.
Mr. KELLER. Well, that is for another day and another forum. It has
nothing to do with this particular bill.
Mr. ACKERMAN. It certainly does. That is exactly the point of this
amendment the gentleman is speaking on.
Mr. STENHOLM. Mr. Chairman, I move to strike the requisite number of
words.
I want to begin by acknowledging the tenacity of my friend from New
York in continuing to attempt to pass what is basically an animal
rights question. We have had this discussion many times. It is
interesting listening to the debate on this, because as a cosponsor of
this base legislation today, I am opposed to frivolous lawsuits. But we
make a mistake when we leave the impression with our colleagues that
there is a connection between a downed animal and a diseased animal.
That in itself is grounds for a frivolous lawsuit, because a downed
animal is not necessarily a sick animal. And a downed animal is not
necessarily a BSE animal. That is what, if this amendment shall pass,
is intended to do, is to make a tie between the two.
Now, I am sure the gentleman knows that a lot has transpired since we
had this discussion on the floor last summer. USDA has already banned
all downer cattle from the human food supply, period. His amendment,
though, includes all livestock; and this would provide the grounds for
a lawsuit under the general argument I have heard from too many of my
colleagues over here today, that any firm that could be accused of
slaughtering a hog that could not walk, and if you have ever raised
hogs you know that many times something happens to their body physique
that will cause them to just drop and you cannot get them up for any
other reason other than just pick them up and carry them. Now, what
that would have to do with adulterated food, I do not know; but if this
legislation should pass with this amendment in it, that would be
grounds for a lawsuit.
It is not fair or just to exclude some manufacturers from these legal
protections who are processing food legally and in accordance with USDA
regulations simply because some folks have an unrelated animal welfare
concern about downer animals. That needs to be thoroughly understood by
my colleagues on the floor. There is no connection whatsoever between a
downed animal and a food safety concern, it is only after examination
of a downed animal that shows that it is, in fact, a sick animal and
should and must be excluded.
And as I said this last summer, any firm that puts a diseased animal
knowingly into our food chain should be hung to the nearest tree. That,
as the chairman has explained, is what this legislation is all about.
It does not take away the right to sue for those things that are so
clear.
I conclude by again saying, please, please do not continue to attempt
on this bill or any other bill to associate downed animals with
diseased animals with BSE. That is not a fair comparison. It is not.
There is plenty of attention being given to the issue of animal health
and welfare in other arenas. The House Committee on Agriculture has
held one hearing on BSE, a field hearing on animal identification was
held last Friday in Houston; and we will be holding more hearings on
these issues in the months ahead.
No one is more interested in seeing that our food supply remain as
safe as it is today. We are making progress. We will continue to make
progress. But it is not in the best interest of anyone to continue to
make the tie between downers and food safety.
Mr. KING of Iowa. Mr. Chairman, I move to strike the requisite number
of words.
Mr. Chairman, I stand here on the floor of this Congress, and I
sometimes think I have passed through the looking glass. I wonder what
our Founding Fathers would think if 200-some years later we would be
standing here with a piece of legislation on the floor debating about
someone ordering a super-sized order of french fries and not being able
to push themselves away from the table soon enough so that that
personal responsibility, so ingrained in the American character, is
being pushed off across the entire American society. We might have to
add on to every order of french fries if we are not able to protect
these food suppliers.
I declined to sign onto this bill, although I support it, for that
reason, that if we have to go down the path of protecting individuals
and individual professions, we will never get done. I would like to see
some blanket reform. But I stand in opposition to the Ackerman
amendment.
A couple of points I would make. The Department of Agriculture, on
balance, even though they have been more aggressive on downer livestock
than I would have cared for, has done an excellent job in response to
the BSE. The beef supply in the United States of America is the safest
in the world, and the credibility that is there with our producers and
the quality of that beef has been established by the confidence, as has
been demonstrated by our consumers. That is what has held this market
up.
The system we have in place does not need to be shaken up, nor does
it need to have the safety of our food supply challenged on the floor
of Congress when it has got such an outstanding record. I urge my
colleagues to vote ``no'' on the Ackerman amendment. The purpose of
H.R. 339 is to protect the food industry from having to defend
themselves from frivolous lawsuits. Baseless lawsuits drain away our
economic productivity and interfere with economic growth.
It is important to point out that this bill does not change the fact
that anyone legitimately injured by substandard food can sue. However,
the Ackerman amendment would open the door for countless groundless
suits that could potentially bankrupt our agra businesses and our
farmers.
I believe this amendment is a schematic way to gut the purpose of the
entire bill, allowing Americans to continue to avoid taking
responsibility for food choices.
With that said, I am opposed to the amendment that defines a downer
animal. I am from western Iowa. In my State, we raise about 25 percent
of the pork. This amendment would put market hogs in the same category
as older cows that are to be tested for BSE; but as clearly stated by
the gentleman from Texas, there is no linkage there between a downer
animal and a diseased animal.
Market hogs can suffer unintended injuries on the way to market that
cause walking problems and thus subject them to this amendment. But
these injuries have nothing to do with the safety and quality of the
meat we eat. It is also important to note that hogs are not subject to
neurological diseases like BSE. So I urge the body to oppose the
Ackerman amendment.
Mr. ANDREWS. Mr. Chairman, I move to strike the requisite number of
words.
Mr. WATT. Mr. Chairman, will the gentleman yield?
Mr. ANDREWS. I yield to the gentleman from North Carolina.
Mr. WATT. Mr. Chairman, I just want to respond to one thing that the
gentleman just said who just debated. I, obviously, did not know any of
our Founding Fathers personally, so it is hard for me to imagine what
would make them turn over in their grave or whatever, as he indicated.
But I think they would be a lot more distressed that we were here in
this body today saying that State legislators are incompetent to handle
these issues in our Federalist form of government than they would
likely be incensed with us dealing with this mundane issue having to do
with french fries and hamburgers. I think that is what would distress
our Founding Fathers. And I regret that the gentleman missed that part
of the debate earlier here. I think that is the distressing thing about
this debate.
Mr. ANDREWS. Reclaiming my time, Mr. Chairman, I would agree with my
friend from North Carolina. I think the

[[Page H967]]

Founding Fathers would be appalled that we were invading the 10th
amendment purview of the States to determine these questions and
imposing this standard for reasons that are lost on me.
Mr. ACKERMAN. Mr. Chairman, will the gentleman yield?
Mr. ANDREWS. I yield to the gentleman from New York.
Mr. ACKERMAN. Mr. Chairman, I thank the gentleman from New Jersey for
yielding to me.
The gentleman from Iowa took it upon himself to speak for the
Founding Fathers, which gives me the initiative to speak for the
founding mothers. I think they would be aghast to see that this
Congress is looking to protect rather prurient corporate interests at
the expense of the health and safety of the American people.
It is not about protecting pigs, my colleague. It is about protecting
people. And I say to the gentleman from Iowa, as well as the gentleman
from Texas, my good friend, who has had many discussions with me on
this issue, that the Ackerman amendment does not take away anybody's
right to sue. It does not give anybody, as the gentleman asserted, the
right to sue. People have a right to sue now. That is the status quo
under the American system of jurisprudence. You can bring a lawsuit.
What the Ackerman amendment attempts to do is to prevent what the
opposition is trying to do, and that is to provide an escape clause for
those corporations who say it is a regulation, not a law; and,
therefore, we are exempt from lawsuits.
The bill before us protects those people who knowingly and willfully
sell bad meat to good people and says the public cannot sue them. The
government can bring action for violating the FDA law, but people
cannot sue under this provision.
It is appalling to think of who we are protecting here. I would have
thought that those who represent the States that have cattle and pigs,
and so many people make an important living from livestock, would
understand the magnitude of the damage that they are doing to their own
industry and their own constituencies. The world does not believe what
they are saying, that the American food is the safest food in the
world. You have lost billions of dollars.
The Japanese will not eat American hamburgers, and they are the ones
who have been buying it all over the world. Europeans test every cow
before they put it on the market. America, with all our wealth, cannot
do that to protect our own people, and my colleagues' constituents are
paying the price. Billions of dollars you have cost them. Wake up.
The American people do not want to eat this meat. And it is not
because they are just a bunch of animal lovers. They will eat meat if
they know that it is safe. And it is your job to protect that industry
as well as the public. And the way to do that is to keep the deck
honest; to allow people to bring a lawsuit if they think harm was done
to them and do not exclude the industry and those who knowingly and
willfully sell products that are tainted to the public.
How can one exercise personal responsibility if you do not know the
facts? There is no label on your hamburger that says that this
hamburger came from a diseased or downed cow. People would not eat it,
and you know that. It is a charade that we are playing here. This has
nothing to do with trial lawyers. This is a simple amendment that
closes an escape clause that I believe, with all due respect, was
inadvertently created by an oversight, regardless of your feeling on
trial lawyers or anything else.
And I should make it clear, talking about pigs, that my amendment
does apply to all livestock, not just cattle.

{time} 1515

The gentleman from Texas is right because all livestock, cattle,
sheep and pigs can bear the animal form of mad cow that can be passed
on.
The CHAIRMAN pro tempore (Mr. Bass). The time of the gentleman from
New Jersey (Mr. Andrews) has expired.
(On request of Mr. Watt, and by unanimous consent, Mr. Andrews was
allowed to proceed for 2 additional minutes.)
Mr. ACKERMAN. Mr. Chairman, will the gentleman yield?
Mr. ANDREWS. I yield to the gentleman from New York.
Mr. ACKERMAN. Mr. Chairman, the USDA, which is selectively cited by
the gentleman from Texas giving it such great authority, happens to be
the authority that says that downed animals are 49 times more likely to
have mad cow disease than ambulatory animals. There is the connection.
It is not that there is no connection, it is not just that a cow fell
and cannot get up and does not have a button to press.
If it is a downed animal, regardless of why it is a downed animal, it
is 49 percent more likely to have mad cow disease. Do Members want to
play that game of Russian roulette with their children? I do not. I
think others really do not, either. If Members want to protect the
American people, guarantee that we are playing straight with the
American people. It is their interest that we are trying to protect.
For the sake of trying to make a few more pennies on the pound, you are
jeopardizing the entire industry, as well as the safety of the American
public.
Mr. STENHOLM. Mr. Chairman, will the gentleman yield?
Mr. ANDREWS. I yield to the gentleman from Texas.
Mr. STENHOLM. Mr. Chairman, with all due respect, the gentleman from
New York keeps talking about BSE and mad cows and downers in the same
breath. We are not arguing that today. With all due respect, the
argument that the gentleman has just made, we have stock shows going on
all over the country. A young boy or girl has raised this calf. They
have shown it. Unfortunately, it breaks its leg. Under the gentleman's
thinking, that calf immediately goes to the dump. It is unfit for human
consumption no matter what because it is a downer and it cannot walk.
Mr. ACKERMAN. Mr. Chairman, will the gentleman yield?
Mr. ANDREWS. I yield to the gentleman from New York.
Mr. ACKERMAN. Under this gentleman's thinking, that beloved animal of
that little boy who has shown him all around, if he falls and breaks
his leg, that animal should be treated humanely and humanely
slaughtered which would prevent it from being sold to the public.
The CHAIRMAN pro tempore. The time of the gentleman from New Jersey
(Mr. Andrews) has expired.
Mr. ANDREWS. Mr. Chairman, I ask unanimous consent to proceed for 2
additional minutes.
The CHAIRMAN pro tempore. Is there objection to the request of the
gentleman from New Jersey?
The CHAIRMAN pro tempore. Objection is heard from the gentleman from
North Carolina (Mr. Hayes).
Mr. GOODLATTE. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, I rise in strong opposition to this amendment. This
bill is a good bill and 89 percent of the American people support the
concept that somebody should not be able to go to a restaurant, to a
food processor or food distributor and be able to sue them because they
became obese because of their bad eating habits. Let us get back to the
subject at hand.
What is wrong with this amendment is that the gentleman from New York
(Mr. Ackerman) would completely gut the purpose of the bill. He keeps
talking about deliberately and willfully putting into the meat supply
diseased animals. We have laws against doing that now. But the
gentleman's amendment does not say what he talks about.
The amendment says manufactured or distributed for human consumption.
It does not say anything about willfully. It says manufactures or
distributes. That means the processing plant, it means the distribution
company, it means somebody who imports from another country where we
have no control over what their laws are on downed animals. It means
the restaurant or cafeteria that distributes the food. It means the
grocery store that distributes the food. It does not address the
specific concern of one particular instance.
This bill completely covers somebody who may be specifically suing
because they ate tainted meat. But all the gentleman from New York is
saying is if we have one instance from here on out where meat was sold
that came from any downed animal, then that company loses the
protection for all time under

[[Page H968]]

this bill. That is outrageous. It obviously completely guts the purpose
of this legislation.
Mr. ACKERMAN. Mr. Chairman, will the gentleman yield?
Mr. GOODLATTE. I yield to the gentleman from New York.
Mr. ACKERMAN. Mr. Chairman, it seems to me the gentleman would have
it both ways. First the claim is that my amendment is redundant, the
bill already does what it does. Now the gentleman is saying that it
guts the bill. How can it be redundant and gut the bill?
Mr. GOODLATTE. Mr. Chairman, reclaiming my time, I never once said
that this is redundant. What I said was there is language in the bill
that protects an individual from being sued, a business from being sued
by an individual, if they ate tainted meat. But the gentleman's
amendment would prohibit a company from having the protection of this
bill if at any time they ever sold one single downed animal or bought
from a company that had processed one downed animal. That covers every
single circumstance of every single company that is engaged in food
processing in the country.
So obviously the gentleman's amendment, no matter what his underlying
intent is, and his underlying intent has nothing to do with obesity,
whatever the gentleman's underlying intent is, the effect of his
amendment is to kill this bill because it would remove protection that
is desired by 89 percent of the American people that we are coming
forward with to do today from every single company in the food process
because it does not require a willful and malicious intent; it just
says all you had to do was distribute it once in the entire history of
your company from this day forward, and you lose that protection under
the law.
This is a foolish, ridiculous amendment, and I urge my colleagues to
reject it. The purpose of the legislation before us is to protect the
food industry from having to defend themselves from frivolous obesity-
related lawsuits. No one has ever argued that downed animals caused
obesity differently than non-downed animals.
This bill does not in any way relate to the issues of food safety,
animal health or animal welfare. Products that do not meet the
standards of our laws relating to food safety, animal health or animal
welfare will not be protected by this legislation.
Mr. Chairman, the bill before us today is a very carefully thought
out effort to address the growing problem of frivolous and costly
lawsuits that do nothing but harm American consumers. These lawsuits
have the consequence of adding unnecessary cost to the food industry
and consumers to the sole benefit of trial lawyers.
The Ackerman amendment has nothing to do with this issue. It simply
creates confusion about who should be afforded protection from obesity-
related lawsuits. Because it is so loosely drafted, so carelessly
drafted, not addressing anything to do with malicious or willful
action, but anybody who manufactures or distributes, any restaurant,
any grocery store, any wholesale business, any processor who has had
any downed animal at any time, that business would, for all time, be
denied the protection of this legislation. I urge my colleagues to
oppose this outrageous amendment.
Mr. ACKERMAN. Mr. Chairman, will the gentleman yield?
Mr. GOODLATTE. I yield to the gentleman from New York.
Mr. ACKERMAN. Mr. Chairman, I am trying not to be insulted by being
accused of having a foolish and ridiculous amendment. I am sure the
gentleman is insulting the amendment.
Mr. GOODLATTE. I am referring to a very foolish amendment, the
gentleman is correct.
Mr. ACKERMAN. Let me suggest to your very sanctimonious self that it
was the chairman of this very committee that said my amendment was
redundant. The author of the bill, rather, who said that the amendment
was redundant, that what I am trying to do is already in the bill.
Mr. GOODLATTE. Mr. Chairman, I reclaim my time.
The CHAIRMAN pro tempore. The time of the gentleman from Virginia
(Mr. Goodlatte) has expired.
The question is on the amendment offered by the gentleman from New
York (Mr. Ackerman).
The question was taken; and the Chairman announced that the noes
appeared to have it.
Mr. ACKERMAN. Mr. Chairman, I demand a recorded vote, and pending
that, I make the point of order that a quorum is not present.
The CHAIRMAN pro tempore. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from New York
(Mr. Ackerman) will be postponed.
The point of no quorum is considered withdrawn.

Sequential Votes Postponed in Committee of the Whole

The CHAIRMAN pro tempore. Pursuant to clause 6 of rule XVIII,
proceedings will now resume on those amendments on which further
proceedings were postponed in the following order: Amendment No. 6
offered by the gentleman from Virginia (Mr. Scott); amendment No. 7
offered by the gentleman from North Carolina (Mr. Watt); amendment No.
2 offered by the gentleman from New Jersey (Mr. Andrews); and amendment
No. 1 offered by the gentleman from New York (Mr. Ackerman).
The first electronic vote will be conducted as a 15-minute vote.
Remaining electronic votes will be conducted as 5-minute votes.

Amendment No. 6 Offered by Mr. Scott of Virginia

The CHAIRMAN pro tempore. The pending business is the demand for a
recorded vote on the amendment offered by the gentleman from Virginia
(Mr. Scott) on which further proceedings were postponed and on which
the ayes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.

Recorded Vote

The CHAIRMAN pro tempore. A recorded vote has been demanded.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 177,
noes 241, not voting 15, as follows:

[Roll No. 48]

AYES--177

Abercrombie
Ackerman
Allen
Andrews
Baca
Baird
Baldwin
Becerra
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boswell
Boucher
Boyd
Brady (PA)
Brown (OH)
Brown, Corrine
Capps
Capuano
Cardin
Carson (IN)
Carson (OK)
Case
Chandler
Clay
Clyburn
Costello
Crowley
Cummings
Davis (AL)
Davis (CA)
Davis (FL)
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dicks
Dingell
Doggett
Doyle
Emanuel
Engel
Eshoo
Etheridge
Evans
Farr
Filner
Ford
Frost
Gonzalez
Green (TX)
Grijalva
Gutierrez
Harman
Hastings (FL)
Hill
Hinchey
Hoeffel
Holt
Honda
Hooley (OR)
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick
Kind
Kleczka
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Leach
Lee
Levin
Lewis (GA)
Lipinski
Lofgren
Lowey
Lynch
Majette
Maloney
Markey
Marshall
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McDermott
McGovern
McIntyre
McNulty
Meehan
Meek (FL)
Meeks (NY)
Menendez
Michaud
Millender-McDonald
Miller (NC)
Miller, George
Mollohan
Moore
Moran (VA)
Murtha
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pascrell
Pastor
Paul
Payne
Pelosi
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Rothman
Roybal-Allard
Rush
Ryan (OH)
Sabo
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Sandlin
Schakowsky
Schiff
Scott (VA)
Serrano
Sherman
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Spratt
Stark
Strickland
Stupak
Tauscher
Thompson (CA)
Thompson (MS)
Tierney
Towns
Turner (TX)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Waters
Watson
Watt
Waxman
Weiner
Wexler
Woolsey
Wu
Wynn

NOES--241

Aderholt
Akin
Alexander
Bachus
Baker
Ballenger
Barrett (SC)
Bartlett (MD)
Barton (TX)
Bass
Beauprez
Bereuter
Biggert
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehlert
Boehner
Bonilla
Bonner
Bono
Boozman
Bradley (NH)
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Burgess
Burns
Burr
Burton (IN)
Buyer
Calvert
Camp
Cannon
Cantor
Capito
Cardoza
Carter
Castle
Chabot

[[Page H969]]

Chocola
Coble
Cole
Collins
Cooper
Cox
Cramer
Crane
Crenshaw
Cubin
Culberson
Cunningham
Davis (TN)
Davis, Jo Ann
Davis, Tom
Deal (GA)
DeLay
DeMint
Diaz-Balart, L.
Diaz-Balart, M.
Dooley (CA)
Doolittle
Dreier
Duncan
Dunn
Edwards
Ehlers
Emerson
English
Everett
Feeney
Ferguson
Flake
Foley
Forbes
Fossella
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Goode
Goodlatte
Gordon
Goss
Granger
Graves
Green (WI)
Greenwood
Gutknecht
Hall
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Hobson
Hoekstra
Holden
Hostettler
Houghton
Hulshof
Hunter
Hyde
Isakson
Issa
Istook
Jenkins
John
Johnson (CT)
Johnson (IL)
Johnson, Sam
Jones (NC)
Keller
Kelly
Kennedy (MN)
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
Kolbe
LaHood
Latham
LaTourette
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas (KY)
Lucas (OK)
Manzullo
Matheson
McCotter
McCrery
McHugh
McInnis
McKeon
Mica
Miller (MI)
Miller, Gary
Moran (KS)
Murphy
Musgrave
Myrick
Nethercutt
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Osborne
Ose
Otter
Oxley
Pearce
Pence
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Platts
Pombo
Porter
Portman
Pryce (OH)
Putnam
Quinn
Radanovich
Ramstad
Regula
Rehberg
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Ross
Royce
Ruppersberger
Ryan (WI)
Ryun (KS)
Saxton
Schrock
Scott (GA)
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Simpson
Smith (MI)
Smith (NJ)
Smith (TX)
Souder
Stearns
Stenholm
Sullivan
Sweeney
Tancredo
Tanner
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thornberry
Tiahrt
Tiberi
Toomey
Turner (OH)
Upton
Vitter
Walden (OR)
Walsh
Wamp
Weldon (FL)
Weldon (PA)
Weller
Whitfield
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)

NOT VOTING--15

Ballance
Bell
Berkley
Conyers
Davis (IL)
Fattah
Frank (MA)
Gephardt
Hinojosa
Kucinich
Miller (FL)
Rodriguez
Tauzin
Udall (CO)
Wicker

Announcement by the Chairman Pro Tempore

The CHAIRMAN pro tempore (Mr. Bass) (during the vote). Members are
advised there are 2 minutes remaining in this vote.

{time} 1550

Messrs. FORBES, PEARCE, JENKINS, MICA, CANNON, PLATTS and
RUPPERSBERGER, and Mrs. MILLER of Michigan and Mrs. BIGGERT changed
their vote from ``aye'' to ``no.''
Messrs. NEAL of Massachusetts, STUPAK, EVANS, MEEK of Florida, DAVIS
of Florida, and Ms. KAPTUR changed their vote from ``no'' to ``aye.''
So the amendment was rejected.
The result of the vote was announced as above recorded.

Amendment No. 7 Offered by Mr. Watt

The CHAIRMAN pro tempore. The pending business is the demand for a
recorded vote on the amendment offered by the gentleman from North
Carolina (Mr. Watt) on which further proceedings were postponed and on
which the noes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.

Recorded Vote

The CHAIRMAN pro tempore. A recorded vote has been demanded.
A recorded vote was ordered.
The CHAIRMAN pro tempore. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--ayes 158,
noes 261, not voting 14, as follows:

[Roll No. 49]

AYES--158

Abercrombie
Ackerman
Allen
Andrews
Baca
Baldwin
Becerra
Berman
Bishop (GA)
Bishop (NY)
Blumenauer
Boswell
Brady (PA)
Brown (OH)
Brown, Corrine
Capps
Capuano
Cardin
Carson (IN)
Case
Chandler
Clay
Clyburn
Costello
Crowley
Cummings
Davis (CA)
Davis (FL)
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dingell
Doggett
Doyle
Emanuel
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Ford
Frost
Gonzalez
Green (TX)
Grijalva
Gutierrez
Hastings (FL)
Hill
Hinchey
Hoeffel
Holt
Honda
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick
Kleczka
Lampson
Langevin
Lantos
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Lofgren
Lowey
Lynch
Majette
Maloney
Markey
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McDermott
McGovern
McIntyre
McNulty
Meehan
Meek (FL)
Meeks (NY)
Menendez
Millender-McDonald
Miller (NC)
Miller, George
Mollohan
Moore
Murtha
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pascrell
Pastor
Paul
Payne
Pelosi
Price (NC)
Rangel
Reyes
Ross
Rothman
Roybal-Allard
Rush
Ryan (OH)
Sabo
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Sandlin
Schakowsky
Schiff
Scott (VA)
Serrano
Sherman
Skelton
Slaughter
Snyder
Solis
Stark
Strickland
Stupak
Thompson (CA)
Thompson (MS)
Tierney
Towns
Turner (TX)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Waters
Watson
Watt
Waxman
Weiner
Wexler
Woolsey
Wu

NOES--261

Aderholt
Akin
Alexander
Bachus
Baird
Baker
Ballenger
Barrett (SC)
Bartlett (MD)
Barton (TX)
Bass
Beauprez
Bereuter
Berry
Biggert
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehlert
Boehner
Bonilla
Bonner
Bono
Boozman
Boucher
Boyd
Bradley (NH)
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Burgess
Burns
Burr
Burton (IN)
Buyer
Calvert
Camp
Cannon
Cantor
Capito
Cardoza
Carson (OK)
Carter
Castle
Chabot
Chocola
Coble
Cole
Collins
Cooper
Cox
Cramer
Crane
Crenshaw
Cubin
Culberson
Cunningham
Davis (AL)
Davis (TN)
Davis, Jo Ann
Davis, Tom
Deal (GA)
DeLay
DeMint
Diaz-Balart, L.
Diaz-Balart, M.
Dicks
Dooley (CA)
Doolittle
Dreier
Duncan
Dunn
Edwards
Ehlers
Emerson
English
Everett
Feeney
Ferguson
Flake
Foley
Forbes
Fossella
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Goode
Goodlatte
Gordon
Goss
Granger
Graves
Green (WI)
Greenwood
Gutknecht
Hall
Harman
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Hobson
Hoekstra
Holden
Hooley (OR)
Hostettler
Houghton
Hulshof
Hunter
Hyde
Isakson
Issa
Istook
Jenkins
John
Johnson (CT)
Johnson (IL)
Johnson, Sam
Jones (NC)
Keller
Kelly
Kennedy (MN)
Kind
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
Kolbe
LaHood
Larsen (WA)
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas (KY)
Lucas (OK)
Manzullo
Marshall
Matheson
McCotter
McCrery
McHugh
McInnis
McKeon
Mica
Michaud
Miller (MI)
Miller, Gary
Moran (KS)
Moran (VA)
Murphy
Musgrave
Myrick
Nethercutt
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Osborne
Ose
Otter
Oxley
Pearce
Pence
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Platts
Pombo
Pomeroy
Porter
Portman
Pryce (OH)
Putnam
Quinn
Radanovich
Rahall
Ramstad
Regula
Rehberg
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Royce
Ruppersberger
Ryan (WI)
Ryun (KS)
Saxton
Schrock
Scott (GA)
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Simpson
Smith (MI)
Smith (NJ)
Smith (TX)
Smith (WA)
Souder
Spratt
Stearns
Stenholm
Sullivan
Sweeney
Tancredo
Tanner
Tauscher
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thornberry
Tiahrt
Tiberi
Toomey
Turner (OH)
Upton
Vitter
Walden (OR)
Walsh
Wamp
Weldon (FL)
Weldon (PA)
Weller
Whitfield
Wilson (NM)
Wilson (SC)
Wolf
Wynn
Young (AK)
Young (FL)

NOT VOTING--14

Ballance
Bell
Berkley
Conyers
Davis (IL)
Frank (MA)
Gephardt
Hinojosa
Kucinich
Miller (FL)
Rodriguez
Tauzin
Udall (CO)
Wicker

Announcement by the Chairman Pro Tempore

The CHAIRMAN pro tempore (during the vote). Members are advised there
are 2 minutes remaining in this vote.

{time} 1557

So the amendment was rejected.
The result of the vote was announced as above recorded.

Amendment No. 2 Offered by Mr. Andrews

The CHAIRMAN pro tempore. The pending business is the demand for a

[[Page H970]]

recorded vote on the amendment offered by the gentleman from New Jersey
(Mr. Andrews) on which further proceedings were postponed and on which
the noes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.

Recorded Vote

[Roll No. 50]

AYES--129

Abercrombie
Ackerman
Allen
Andrews
Baldwin
Ballance
Becerra
Bishop (NY)
Blumenauer
Brady (PA)
Brown (OH)
Brown, Corrine
Capps
Carson (IN)
Case
Clyburn
Costello
Crowley
Cummings
Davis (CA)
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dingell
Doggett
Doyle
Emanuel
Engel
Eshoo
Evans
Farr
Fattah
Filner
Ford
Frost
Green (TX)
Grijalva
Gutierrez
Harman
Hastings (FL)
Hinchey
Hoeffel
Holt
Honda
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick
Kleczka
Lampson
Langevin
Lantos
Larson (CT)
Lee
Lewis (GA)
Lipinski
Lofgren
Lowey
Lynch
Majette
Maloney
Markey
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McDermott
McGovern
McIntyre
McNulty
Meehan
Meek (FL)
Millender-McDonald
Miller, George
Mollohan
Murtha
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Owens
Pallone
Pascrell
Pastor
Payne
Pelosi
Rahall
Rangel
Rothman
Roybal-Allard
Rush
Ryan (OH)
Sabo
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Schakowsky
Schiff
Scott (VA)
Serrano
Sherman
Slaughter
Solis
Stark
Stupak
Thompson (CA)
Thompson (MS)
Tierney
Udall (NM)
Van Hollen
Velazquez
Visclosky
Waters
Watson
Watt
Weiner
Wexler
Wu

NOES--285

Aderholt
Akin
Alexander
Baca
Bachus
Baird
Baker
Ballenger
Barrett (SC)
Bartlett (MD)
Barton (TX)
Bass
Beauprez
Bereuter
Berman
Berry
Biggert
Bilirakis
Bishop (GA)
Bishop (UT)
Blackburn
Blunt
Boehlert
Boehner
Bonilla
Bonner
Bono
Boozman
Boswell
Boucher
Boyd
Bradley (NH)
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Burgess
Burns
Burr
Burton (IN)
Buyer
Calvert
Camp
Cannon
Cantor
Capito
Capuano
Cardin
Cardoza
Carson (OK)
Carter
Castle
Chabot
Chandler
Chocola
Clay
Coble
Cole
Collins
Cooper
Cox
Cramer
Crane
Crenshaw
Cubin
Culberson
Cunningham
Davis (AL)
Davis (FL)
Davis (TN)
Davis, Jo Ann
Davis, Tom
Deal (GA)
DeLay
DeMint
Diaz-Balart, L.
Diaz-Balart, M.
Dicks
Dooley (CA)
Doolittle
Dreier
Duncan
Dunn
Edwards
Ehlers
Emerson
English
Etheridge
Everett
Feeney
Ferguson
Flake
Foley
Forbes
Fossella
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Gonzalez
Goode
Goodlatte
Gordon
Goss
Granger
Graves
Green (WI)
Greenwood
Gutknecht
Hall
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Hill
Hobson
Hoekstra
Holden
Hooley (OR)
Hostettler
Houghton
Hoyer
Hulshof
Hunter
Hyde
Inslee
Isakson
Issa
Jenkins
John
Johnson (CT)
Johnson (IL)
Johnson, Sam
Keller
Kelly
Kennedy (MN)
Kind
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
Kolbe
LaHood
Larsen (WA)
Latham
LaTourette
Leach
Levin
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas (KY)
Lucas (OK)
Manzullo
Marshall
Matheson
McCotter
McCrery
McHugh
McInnis
McKeon
Meeks (NY)
Menendez
Mica
Michaud
Miller (MI)
Miller (NC)
Miller, Gary
Moore
Moran (KS)
Moran (VA)
Murphy
Musgrave
Myrick
Nethercutt
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Ortiz
Osborne
Ose
Otter
Oxley
Paul
Pearce
Pence
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Platts
Pombo
Pomeroy
Porter
Portman
Price (NC)
Pryce (OH)
Putnam
Quinn
Ramstad
Regula
Rehberg
Renzi
Reyes
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Ross
Royce
Ruppersberger
Ryan (WI)
Ryun (KS)
Sandlin
Saxton
Schrock
Scott (GA)
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Simpson
Skelton
Smith (MI)
Smith (NJ)
Smith (TX)
Smith (WA)
Snyder
Spratt
Stearns
Stenholm
Sullivan
Sweeney
Tancredo
Tanner
Tauscher
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thornberry
Tiahrt
Tiberi
Toomey
Towns
Turner (OH)
Turner (TX)
Upton
Vitter
Walden (OR)
Walsh
Wamp
Waxman
Weldon (FL)
Weldon (PA)
Weller
Whitfield
Wilson (NM)
Wilson (SC)
Wolf
Wynn
Young (AK)
Young (FL)

NOT VOTING--19

Bell
Berkley
Conyers
Davis (IL)
Frank (MA)
Gephardt
Hinojosa
Istook
Jones (NC)
Kucinich
Miller (FL)
Radanovich
Rodriguez
Souder
Strickland
Tauzin
Udall (CO)
Wicker
Woolsey

announcement by the chairman pro tempore

The CHAIRMAN pro tempore (Mr. Bass) (during the vote). Members are
advised there are 2 minutes remaining in this vote.

{time} 1604

Mrs. KELLY changed her vote from ``aye'' to ``no.''
So the amendment was rejected.
The result of the vote was announced as above recorded.

amendment no. 1 offered by mr. ackerman

The CHAIRMAN pro tempore. The pending business is the demand for a
recorded vote on the amendment offered by the gentleman from New York
(Mr. Ackerman) on which further proceedings were postponed and on which
the noes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.

recorded vote

[Roll No. 51]

AYES--141

Abercrombie
Ackerman
Allen
Andrews
Baca
Baldwin
Becerra
Berman
Bishop (NY)
Blumenauer
Brady (PA)
Brown (OH)
Brown, Corrine
Capps
Capuano
Cardin
Carson (IN)
Case
Clay
Clyburn
Costello
Crowley
Cummings
Davis (CA)
Davis (FL)
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dicks
Dingell
Doggett
Doyle
Engel
Eshoo
Evans
Farr
Fattah
Filner
Green (TX)
Grijalva
Gutierrez
Harman
Hastings (FL)
Hinchey
Hoeffel
Holt
Honda
Hooley (OR)
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kelly
Kennedy (RI)
Kildee
Kilpatrick
Kleczka
Lampson
Langevin
Lantos
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Lofgren
Lowey
Maloney
Markey
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McDermott
McGovern
McNulty
Meehan
Meek (FL)
Meeks (NY)
Michaud
Millender-McDonald
Miller, George
Mollohan
Moore
Murtha
Nadler
Napolitano
Neal (MA)
Olver
Owens
Pallone
Pascrell
Payne
Pelosi
Price (NC)
Rahall
Rangel
Rothman
Roybal-Allard
Rush
Ryan (OH)
Sabo
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Schakowsky
Schiff
Scott (VA)
Serrano
Sherman
Slaughter
Snyder
Solis
Stark
Stupak
Tancredo
Tauscher
Taylor (MS)
Thompson (CA)
Tierney
Towns
Udall (NM)
Van Hollen
Velazquez
Visclosky
Waters
Watson
Watt
Waxman
Weiner
Wexler
Woolsey
Wu

NOES--276

Aderholt
Akin
Alexander
Bachus
Baird
Baker
Ballance
Ballenger
Barrett (SC)
Bartlett (MD)
Barton (TX)
Bass
Beauprez
Bereuter
Berry
Biggert
Bilirakis
Bishop (GA)
Bishop (UT)
Blackburn
Blunt
Boehlert
Boehner
Bonilla
Bonner
Bono
Boozman
Boswell
Boucher
Boyd
Bradley (NH)
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Burgess
Burns
Burr
Burton (IN)
Buyer
Calvert
Camp
Cannon
Cantor
Capito
Cardoza
Carson (OK)
Carter
Castle
Chabot
Chandler
Chocola
Coble
Cole
Collins
Cooper
Cox
Cramer
Crane
Crenshaw
Cubin
Culberson
Cunningham
Davis (AL)
Davis (TN)
Davis, Jo Ann

[[Page H971]]

Davis, Tom
Deal (GA)
DeLay
DeMint
Diaz-Balart, L.
Diaz-Balart, M.
Dooley (CA)
Doolittle
Dreier
Duncan
Dunn
Edwards
Ehlers
Emanuel
Emerson
English
Etheridge
Everett
Feeney
Ferguson
Flake
Foley
Forbes
Ford
Fossella
Franks (AZ)
Frelinghuysen
Frost
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Gonzalez
Goode
Goodlatte
Gordon
Goss
Granger
Graves
Green (WI)
Greenwood
Gutknecht
Hall
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Hill
Hobson
Hoekstra
Holden
Hostettler
Houghton
Hulshof
Hunter
Hyde
Isakson
Issa
Istook
Jenkins
John
Johnson (CT)
Johnson (IL)
Johnson, Sam
Jones (NC)
Keller
Kennedy (MN)
Kind
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
Kolbe
LaHood
Larsen (WA)
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas (KY)
Lucas (OK)
Lynch
Majette
Manzullo
Marshall
Matheson
McCotter
McCrery
McHugh
McInnis
McIntyre
McKeon
Menendez
Mica
Miller (MI)
Miller (NC)
Miller, Gary
Moran (KS)
Moran (VA)
Murphy
Musgrave
Myrick
Nethercutt
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Oberstar
Obey
Ortiz
Osborne
Ose
Otter
Pastor
Paul
Pearce
Pence
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Platts
Pombo
Pomeroy
Porter
Portman
Pryce (OH)
Putnam
Quinn
Radanovich
Ramstad
Regula
Rehberg
Renzi
Reyes
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Ross
Royce
Ruppersberger
Ryan (WI)
Ryun (KS)
Sandlin
Saxton
Schrock
Scott (GA)
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Skelton
Smith (MI)
Smith (TX)
Smith (WA)
Souder
Spratt
Stearns
Stenholm
Strickland
Sullivan
Sweeney
Tanner
Taylor (NC)
Terry
Thomas
Thompson (MS)
Thornberry
Tiahrt
Tiberi
Toomey
Turner (OH)
Turner (TX)
Upton
Vitter
Walden (OR)
Walsh
Wamp
Weldon (FL)
Weldon (PA)
Weller
Whitfield
Wilson (NM)
Wilson (SC)
Wolf
Wynn
Young (AK)
Young (FL)

NOT VOTING--16

Bell
Berkley
Conyers
Davis (IL)
Frank (MA)
Gephardt
Hinojosa
Kucinich
Miller (FL)
Oxley
Rodriguez
Simpson
Smith (NJ)
Tauzin
Udall (CO)
Wicker

Announcement by the Chairman Pro Tempore

The CHAIRMAN pro tempore (during the vote). Members are advised there
are 2 minutes remaining in this vote.

{time} 1612

Mr. FORD changed his vote from ``aye'' to ``no.''
So the amendment was rejected.
The result of the vote was announced as above recorded.

Amendment No. 4 Offered by Mr. Lampson

Mr. LAMPSON. Mr. Chairman, I offer an amendment.
The CHAIRMAN pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 4 offered by Mr. Lampson:
At the end of the bill (preceding the amendment to the long
title), insert the following new section:

SEC. 5. ACTIONS BY YOUNG CHILDREN AGAINST SELLERS THAT MARKET
TO YOUNG CHILDREN.

Notwithstanding any other provision of this Act, this Act
shall not apply to an action brought by, or on behalf of, a
person injured at or before the age of 8, against a seller
that, as part of a chain of outlets at least 20 of which do
business under the same trade name (regardless of form of
ownership of any outlet), markets qualified products to
minors at or under the age of 8.

Mr. LAMPSON. Mr. Chairman, today the House is continuing to consider
H.R. 339, the Personal Responsibility in Food Consumption Act. I oppose
the core of this bill because I believe that the constitutional right
to seek redress in our courts as guaranteed by the seventh amendment is
inviolate and the right to civil justice is a fundamental element of
any stable and just society.
Time and time again, we see measures on the House floor designed to
immunize special interests from the only means that citizens have to
hold certain companies and corporations accountable. And today's bill
is no exception.
So that is why I offer an amendment to the bill to protect children 8
years of age and younger. This very narrow amendment targets only those
fast-food chain restaurants who aggressively market their products to
the youngest segments of our society.
As the chair of the Missing and Exploited Children's Caucus and, more
importantly, as a concerned grandparent, I have always fought to
protect our children's interests. And as such, I want to make sure that
children learn how to make informed nutritional choices. Part of that
process requires us to hold those who treat children as an advertising
demographic accountable, especially when children's health is at stake.
Mr. Chairman, today the younger age group faces a litany of health
issues that generations before them did not face. Heart disease, high
blood pressure, hypertension, joint problems, asthma, diabetes and
cancer are on the increase with these children. And a steady diet of
fast food is the absolute last thing that they need. Unfortunately,
fast-food restaurants are bombarding our children with advertisements
that encourage overconsumption of unhealthy eating choices.
The average child views 20,000 television commercials each year. That
is about 55 commercials a day. And more disturbingly, the commercials
for candies, snacks, sugared cereals and other foods with poor
nutritional content far, far outnumber commercials for more healthy
food choices.
Every working parent knows how aggressive these marketing campaigns
can be, especially when they tie in incentives such as playgrounds and
contests and clubs and games and free toys and movies and television
and sports league-related merchandise. Well, how can we expect our
children freely to say no to fast food when it is, no pun intended,
pushed down their throats in this manner day in and day out?
Well, one child in my district who is 8 and who suffers from juvenile
diabetes faces a far greater battle to maintain his fragile health than
do most children. He already faces a lifetime of increased health and
nutritional expenses. And I do not want him and other children like him
to fall prey to the marketing practices of the fast-food industry.

{time} 1615

Working families have enough to contend with through fighting to keep
their jobs and providing a good education for their children, so they
should not have to take any even more steps to protect their children
from industry and advertizing practices that are running rampant pants.
Should this unfortunate set of circumstances become reality our
children, must be able to seek redress in our courts and in our justice
system.
Mr. Chairman, studies indicate that at age 8 and under, children are
more susceptible to such advertising, and even less likely to
understand the purpose of this advertising. So that is why so much of
this advertising is done during the cartoon hour, and it is no
coincidence that major fast food chains routinely run their
advertisements during this time. The tragic results of this marketing
of fast food is a nation of overweight children who remain vulnerable
to a host of medical conditions that they should not have to worry
about during their formative years.
It is for these reasons that this amendment to H.R. 339 is necessary.
If we totally foreclose any opportunity, any opportunity to hold this
industry accountable, especially for our youngest children, we will
only see an increase in childhood obesity and other related problems.
It is time we demand responsibility on the part of the fast food
industry, it is our responsibility as lawmakers to protect those who
cannot protect themselves. My amendment offers that safety net for our
children. And for these and many other reasons, we should support it
today. I ask my colleagues to join me in supporting this amendment.
Mr. SENSENBRENNER. Mr. Chairman, I rise in opposition to the
amendment.
Mr. Chairman, this amendment will do exactly the opposite of what the
gentleman from Texas (Mr. Lampson) says it will do, because what the
amendment says is that it tells parents that if they are not
responsible, they can become millionaires. The amendments exploit
children and it discourages parents from exercising parental

[[Page H972]]

responsibility at all times. It is the parents that buy the Happy
Meals. It is the parents that take their kids to the fast food chain.
And few kids under 8 either have their own money to buy the Happy Meals
or can make it to the fast food outlet without their parents taking
them down there.
So if this amendment is adopted and little Johnnie or little Mary
become big Johnnie and real big Mary before the age of 8, then their
parents can sue and hopefully break the bank, according to what their
lawyers tell them.
The Los Angeles Times says this is wrong. And one of their editorials
they said, in part, ``If kids are chowing down to excess on junk food,
though, aren't their parents responsible for cracking down?''
The gentleman from Texas' (Mr. Lampson) amendment says, no, they are
not. And as a matter of fact, we will give those parents the
opportunity of monetary enrichment if they buy their kids far too many
happy meals and do not just say no when Johnnie and Mary pull on their
parents' shirt tails and say, let us go down to McDonalds or the Burger
King or one of these other fast food outlets.
Now, even the best obesity doctors realize this amendment is another
sad assault on the concept of parental responsibility. Dr. Jana Clauer,
a fellow at the New York City Obesity Research Center of St. Luke's
Roosevelt Hospital has said, ``I just wonder where were the parents
when the kids were having those McDonalds breakfasts every morning.
Were they incapable of pouring a bowl of cereal and some milk?''
Well, this amendment tells those parents that if they do not pour
that bowl of cereal and put some milk on the top of it and ruin their
kids health as a result, if those kids are under 8 they can go off to
court because it was not their fault. Vote this amendment down.
Mr. WATT. Mr. Chairman, I move to strike the last word.
Mr. Chairman, I yield to the gentleman from Texas (Mr. Lampson).
Mr. LAMPSON. Mr. Chairman, the words that the gentleman of Wisconsin
(Mr. Sensenbrenner) just spoke indicate that we would give the
opportunity for someone to become wealthy in the event that the child
became fat. Well, we are only asking that if a person becomes injured
from eating the foods that are not healthy for them, and I also know
that studies reviewed in a task force report indicate that the product
preferences can indeed affect children's product purchase requests and
we are bombarded with television ads. I know that those children are
not so much with their parents when they are making the decision to go
to McDonalds or whatever else, these fast food chains, but they are
sitting in front of their television sets and the parents are there
with them.
Much like what happened, and I believe the gentleman would probably
agree that he does not like what we saw during the Superbowl when part
of Janet Jackson's costume came off. Just like the child who was
sitting in front of that TV did not have a choice of what he or she saw
then, what choice do they have when they are watching cartoons and
repeatedly time after time after time after time the same commercial
that puts sugar in front of them over and over again continues to
happen. Does it have an effect on their requests when they go to a
grocery store or to a fast food restaurant? You better believe it does,
and that is what this amendment is attempting to do. It gives them the
opportunity to protect themselves from those injuries only.
Mr. KELLER. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, I ask my colleagues to vote no on the Lampson amendment
for at least three reasons. First, one of the cases involving McDonalds
was brought by a 400-pound child. And every single meal, breakfast,
lunch and dinner, that parent would take the kid to McDonalds and then
shockingly one day wakes up and says, oh, the kid is 400 pounds. I
never encouraged him to get any exercise. I never encouraged him to
step away from the video games. I never encouraged him to not watch TV
all day. I never encouraged him to eat healthy food. I never encouraged
him to exercise. Now I want a million dollars.
That is insane.
This amendment tells parents that they are not responsible. And if
they are not responsible, they can even profit by becoming millionaires
and sue for it.
Now, it was brought up that these companies market to kids as well as
adults. I have two kids, 8 years old and younger. I can tell you who
else markets to kids. Barney, Bear in the Big Blue House, Dora the
Explorer, Blue's Clues, Nickelodeon, the Disney Channel. In fact, one
could argue if you take this argument, that, in fact, those programs
are so enticing and so addicting and so enjoyable to kids but they have
no choice but to sit there and watch them every day, and as a result,
they lead a stagnant life-style, so why not sue them for obesity since
they are marketing to them?
It puts the incentives in the wrong place totally.
Third, I want to briefly point out that childhood obesity is
certainly a serious problem. The childhood obesity rates have doubled
in the last 30 years. I do not stand before you today and hold myself
out as the world's leading expert on physical fitness, but I can tell
you the world leading expert on physical fitness, Dr. Kenneth Cooper,
the founder of the aerobics movement, testified before my Committee on
Education and the Workforce on February 14 of this year and said to us
that these lawsuits against the food industry are putting, or putting a
tax on Twinkies is not going to make a single person any skinnier.
He said, 30 years ago did kids come home from school and eat potato
chips and cupcakes and cookies? Absolutely, they did. The difference is
then they went out and rode their bike and played.
Now, they spend 1,023 hours a year in front of a TV screen watching
TV or playing video games versus only 900 at school. Where are the
parents? If you are talking about a kid eating fast food 21 times a
week, where are the parents?
This amendment says the parents have no responsibility whatsoever. It
defies common sense however well meaning the author may be. I urge my
colleagues to vote no.
Ms. JACKSON-LEE of Texas. Mr. Chairman, I rise to strike the
requisite number of words.
Mr. Chairman, I am just confounded by the debate on the floor of the
House as it relates to the Lampson amendment, and I rise to
enthusiastically support it because all that I have been hearing from
my colleagues in opposition is this is bash the parents day. The
parents should have known. The parent needs to know. The parent ought
to know.
The Lampson amendment is simple and it is without complexity. It
simply tracks the tragedy that occurred some years ago when a young
child was poisoned at one of our fast food locations in the
northwestern part of America. I believe it was Whataburger and I
believe it was in the State of Washington. All his amendment says is
that if a child is injured, then you have a right to pursue the case on
behalf of that child.
Now, as reason would have it, we already know that the Congress that
we are under, over the last 10 years, has eliminated everyone's right
to go into the courthouse for justice. So do not expect that there is
going to be a rush to the courthouse with parents who are going to
claim that all of their children have been injured because they are not
going to be addressed. They will not have an opportunity to have their
grievances addressed. All of the doors of the courthouses have been
closed to individuals who have been aggrieved, if you will, and who
have been injured.
This is a simple statement to provide the protection that the fast
food chains want to have. How can we not, under the umbrella of equity,
not accept the fairness of what the gentleman from Texas (Mr. Lampson)
is offering today?
As the Chair of the Congressional Children's Caucus and the gentleman
from Texas' (Mr. Lampson) leadership daily with exploited children, I
cannot imagine that a simple amendment simply asking for fairness would
not be accepted by this body. I ask my colleagues to look clearly and
squarely at the simplicity of this amendment, and I ask them to vote
for the Lampson amendment.
The CHAIRMAN pro tempore (Mr. Bass). The question is on the amendment
offered by the gentleman from Texas (Mr. Lampson).
The amendment was rejected.

[[Page H973]]

Amendment No. 9 Offered by Ms. Jackson-Lee of Texas

Ms. JACKSON-LEE of Texas. Mr. Chairman, I offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 9 offered by Ms. Jackson-Lee of Texas:
Section 4(5), insert after ``or a trade association,'' the
following: ``or a civil action brought by a manufacturer or
seller of a qualified product, or a trade assocation, against
any person,''.

Ms. JACKSON-LEE of Texas. Mr. Chairman, it is interesting in
listening to the debate on this legislation and seeing, of course,
extensive coverage that this legislation is obtaining, it would appear
that we are doing serious legislation, providing improvement to the
Medicare bill, Medicaid bill, finding ways to quell the violence in
Haiti, bring some resolution to the Iraq war, but to my colleagues, we
are doing none of that.
We are now spending hours on the floor, and I certainly thank my
colleagues for allowing this amendment to be made in order, trying to
dash the hopes of those who have been severely injured and are seeking
a redress of their grievances in a court of law.
Now, all of us come from constituency that are filled with fast food
chains and restaurants. Many of us would disagree with recent
statements of the administration that that equals to manufacturing; but
we do know that people are employed by this industry.
In my own community, I have been a strong advocate of small
businesses and the franchise owners who have received their economic
income from this industry. But, Mr. Chairman, we have gone too far.
Now, we want to take up the cause of fast food chains with the likes
of McDonalds and Jack in the Box as characters, give them the
Constitution and the Bill of Rights and tell Americans where to go. My
amendment is simple. You protect the fast food chains from lawsuits,
and I simply want to be able to protect those like Oprah Winfrey and
others who wish to make statements about the industry or the product
and allow them to be immune from lawsuits.
My amendment ensures that what is good for the geese is good for the
gander. Those advancing healthy diet by discouraging the consumption of
certain food because of their adverse effects on a person's health and
weight gain should not be subject to litigation from the food industry
while it stands immune from any accountability under this bill.

{time} 1630

Simple. There is no sinister, if you will, hide the ball behind this
amendment. It simply says that you are protecting the industry; they
cannot be sued; they are above reproach; they have the Constitution and
are shredding it, so why cannot we?
I do not understand. When Oprah Winfrey was sued, I do not recall any
hue and cry in this body during, or in the aftermath of the lawsuit
against Ms. Winfrey, millions of dollars, moving her television program
to Texas, in order to be able to press her case. The system worked.
There was a trial and she was vindicated ultimately, but a long trial,
and the industry had its day in court. But if we are to end the
public's right to a jury trial on issues of food safety, we cannot end
the public's right to freedom of speech by leaving food critics who
play an important role in educating the public, stimulating positive
change and promoting sound eating habits open to lawsuits from an
immunized industry.
This amendment addresses this concern and ensures that every American
can engage in or has access to an open and honest debate.
Mr. Chairman, I would simply say that the time we have spent on this
bill, I know that our time could have been more well spent. I do not
know whether we have documented how many lawsuits have gone against the
industry. I do not know how much money we have documented, but I would
certainly say to my colleagues that it seems ridiculous that we have
legislation that closes the courthouse door. The judicial system has
worked well for us in America, and I simply think we should allow it to
continue its work.
This amendment simply tries to make this bill minimally slightly
better for the poor consumers and the voices of reason that are now
opposing some of the extreme in this industry. My support is for the
food franchisees and all of those who work in the industry, but even
they realize that fairness is something that cannot be eaten up.
I ask my colleagues to support the Jackson-Lee amendment.
Mr. Chairman, I offered an amendment, ``WATT_019,'' in addition to
``MJ_004.'' This amendment would prohibit the food industry--which
enjoys broad immunity under this bill--from initiating lawsuits against
any person for damages or other relief due to injury or potential
injury based on a person's consumption of a qualified product and
weight gain, obesity, or any health condition that is associated with a
person's weight gain or obesity.
This amendment is necessary to insure that the public debate on the
health and nutritious effects of mass marketed food products is not
completely squelched by this bill.
In 1996, Oprah Winfrey was sued under my home state's ``food
disparagement'' laws by the beef industry for comments she made
following the first ``Mad cow'' scare this country witnessed. After
years of litigation, transfer of her television show to Texas, and an
expenditure of over one million dollars, Ms. Winfrey prevailed at trial
and on appeal.
Proponents of this bill assert that the food industry will incur
significant cost defending ``frivolous'' lawsuits by the trial lawyers,
but neglect the staggering costs that may be borne by private citizens
should they dare question the health effects of any ``qualified food
product'' under this bill.
My amendment insures that what's good for the geese is good for the
gander. Those advancing healthy diets by discouraging the consumption
of certain foods because of their adverse effects on a person's health
and weight gain should not be subject to litigation from the food
industry while it stands immunized from any accountability under this
bill.
I don't recall any hue and cry in this body during or in the
aftermath of the lawsuit against Ms. Winfrey to ban food libel laws.
The system worked. But if we are to end the public's right to a jury
trial on issues of food safety, we cannot end the public's right to
freedom of speech by leaving food critics who play an important role in
educating the public, stimulating positive change, and promoting sound
eating habits open to lawsuits from an immunized industry.
This amendment addresses this concern and insures that every American
can engage in or has access to an open and honest debate on matters of
public health.
Once again, Mr. Chairman, I urge my colleagues to support my
amendment.
Mr. KELLER. Mr. Chairman, I move to strike the last word.
I ask my colleagues to vote ``no'' on the Jackson-Lee amendment. The
Personal Responsibility in Food Consumption Act, the base bill,
pertains to lawsuits people bring because they gained weight and are
suing the company that served them the food, claiming it is their
fault. This amendment would prevent manufacturers or sellers of food
from suing individuals because, and I am not making this up, the
company literally got fat. I would like to ask, how is it possible to
determine what the body mass index of General Motors is? Did it gain
weight over the holidays? This amendment should be defeated solely
because it erroneously assumes companies can literally get fat.
The author of the amendment mentioned a little insight into where she
was going when she talked about she does not want individuals like
Oprah Winfrey getting sued. Well, if my colleagues recall, that did not
have anything to do with this. Oprah Winfrey got sued by the Beef
Cattlemen's Association because they claimed she allegedly defamed
them. They did not, the Beef Cattlemen's Association, that because of
her comments, this association got fat.
So this is an erroneously drafted bill, has no application here,
however it is intended, and I would ask my colleagues to vote ``no.''
Mr. WATT. Mr. Chairman, I move to strike the requisite number of
words.
Ms. JACKSON-LEE of Texas. Mr. Chairman, will the gentleman yield?
Mr. WATT. I yield to the gentlewoman from Texas.
Ms. JACKSON-LEE of Texas. Mr. Chairman, I thank the distinguished
gentleman from North Carolina for yielding, and to my good friend from
the great State of Florida, let me try to clarify that this is simply
an equity amendment. It is a fairness amendment.
The example of Ms. Winfrey was only because she, as an individual,
was sued

[[Page H974]]

by a large conglomerate, the association dealing with the beef
industry. I respect both of their points of view, in fact. I welcome
the opportunity for both of them to press their causes in the courts of
law.
What I am simply saying is that if we are going to spend time
protecting the fast food industry, using the time of this House, then I
would challenge my colleagues to give me a reason, a legitimate
explanation for not protecting individual rights, and that means that
if an industry is to be protected from suits that are considered
frivolous, then individuals for their actions should be as well
protected.
I do not understand why we are coming to the floor of the House with
a simply one-sided, single-focused bill. No one has described the
crisis. Usually this body is conceded to be a problem solver. No one
has said that we are overrun with lawsuits. There is no documentation
of the amount of money that has been expended, no suggestion that the
GNP has been impacted, and so if it is fair to protect the industry,
fast foods in particular, if it is fair to bash parents about whether
or not their own children, if injured, have a right to go into court
because of the food that they are eating, not knowing the particular
conditions that the parents operate in, and I would imagine that the
court will determine whether those lawsuits are frivolous, if it is all
right to come to the floor to do that, then I cannot imagine a simple
modifying of this legislation to equalize the rights of both
individuals and associations to me seems to be, if you will,
hypocritical.
Again, I would ask my colleagues to consider this amendment as an
amendment of equity and equality and fairness. It is not necessarily
the Oprah Winfrey amendment, but I think if Ms. Winfrey was here, she
would acknowledge the pain, as well as the burden, that was put upon
her to go as an individual and defend her case in another jurisdiction.
At least she was allowed to go into court. In this legislation, the
door is slammed shut on the basis of the fact that maybe hamburgers
have now taken a greater standard in this country than someone's
individual rights. I would like to find the constitution that says all
hamburgers are created equal.
Let me ask my colleagues to support this amendment on the basis of
fairness.
Mr. SENSENBRENNER. Mr. Chairman, I move to strike the requisite
number of words.
Mr. Chairman, unfortunately, the gentlewoman from Texas' argument has
nothing to do with her amendment and the examples that she has used has
nothing to do with this bill.
First, what the amendment does is exactly what the gentleman from
Florida (Mr. Keller) has indicated, and that is to say, that a company
could sue for getting too fat. Well, a company is a piece of paper that
is signed by the Secretary of State of the State of corporation, and
has the State seal affixed to it. Companies do not get fat, at least in
the physical way that this bill is designed to address.
Secondly, the gentlewoman from Texas brings up the case of the
lawsuit that was filed against Oprah Winfrey. That was a defamation
suit. This bill has nothing to do with allegations of defamation.
Anybody who claims to have a cause of action for defamation is
perfectly able to go to court and file their case.
So I do not understand what relevance the gentlewoman's amendment has
to the issues that are presented to this bill, and that is why it
should be defeated.
Mr. UDALL of New Mexico. Mr. Chairman, I move to strike the requisite
number of words.
Ms. JACKSON-LEE of Texas. Mr. Chairman, will the gentleman yield?
Mr. UDALL of New Mexico. I yield to the gentlewoman from Texas.
Ms. JACKSON-LEE of Texas. Mr. Chairman, I will not take the full 5
minutes, but I am struck by the comments of my distinguished chairman
and colleague from Wisconsin, because his interpretation, I believe, is
not correct, because someone could claim that a fast food chain, and
let me be fair in the calling of them, there are so many, whether it is
Whataburger or McDonald's or Jack-In-The-Box or Burger King, that their
hamburgers, as I said, it must be the constitutional protection of all
hamburgers are created equal, but their hamburger makes one fat, just a
simple statement.
Well, on page 5 of this bill, under the qualified civil liability
action, it clearly suggests that that person would be apt to be sued,
and so what I am saying is if we can put legislation on the floor of
the House to protect the entities, the institutions, the businesses
from frivolous lawsuits, then we should be able to protect those who
are offering their opinion. By way of documentation, by way of
research, they have equal rights.
This is an equity amendment, and it seems to me to be quite unusual
that my colleagues would not welcome the opportunity to equalize
lawsuits, equalize the ban on lawsuits because it is clear that it is
in this bill, and I would ask my colleagues to consider the fairness of
this because it is going directly to the point that is made in this
bill, and I would ask my colleagues to support the Jackson-Lee
amendment.
The CHAIRMAN pro tempore (Mr. Bass). The question is the amendment
offered by the gentlewoman from Texas (Ms. Jackson-Lee).
The amendment was rejected.

Amendment No. 10 Offered by Ms. Jackson-Lee of Texas

Ms. JACKSON-LEE of Texas. Mr. Chairman, I offer an amendment.
The CHAIRMAN pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 10 offered by Ms. Jackson-Lee of Texas:
At the end of the bill (preceding the amendment to the long
title), insert the following new section:

SEC. 5. ACTIONS INVOLVING WEIGHT-LOSS PRODUCTS.

Notwithstanding any other provision of this Act, this Act
shall not apply to an action alleging that a product claiming
to assist in weight loss caused heart disease, heart damage,
primary pulmonary hypertension, neuropsychologocal damage, or
any other complication which may also be generally associated
with a person's weight gain or obesity.

Ms. JACKSON-LEE of Texas. Mr. Chairman, when we looked at that bill,
we tried to find some redeeming value to it because it does say
Personal Responsibility in Food Consumption Act, and clearly there are
none of us that want to be on the wrong side of personal
responsibility, but I want to focus on what the bill actually does.
I think if my colleagues would listen, as the American people will
have to fall victim to this particular legislation, they would know
that this is going just too far because what H.R. 339 does is it bans
suits for harm caused by dietary supplements and mislabeling which have
nothing to do with excess food consumption and would prevent State law
enforcement officials from bringing legal actions to enforce their own
consumer protection law.
Beyond the idea of obesity, and I am going to get fat on whatever
food one might be eating, including the very tasty French fries, this
goes to the very heart of some tragic incidences that we have had
dealing with food and nutritional supplements.
I am aghast, Mr. Chairman, that this bill deals with banning any
opportunity to protect ourselves against ephedra and fen-phen and any
other thing that has to do with these kinds of supplements.
Already we have seen the pain of various individuals who have lost
their loved ones. This is nothing to simplify and/or to make light of.
Even in this current year or the last year we have seen terrible
tragedies occur because of a utilization of these particular drugs, and
now my friends want to have a broad, legislatively written bill, H.R.
339, that slaps the face of those who lost their loved ones, who have
been injured by the utilization of these supplements.
So my amendment is very simple. It provides, if you will, the
protection against that. Hidden in this convoluted definition of the
civil action that relates to a person's consumption of a qualified
product and any health condition that is associated with a person's
weight gain is the fact that a person is banned from bringing a lawsuit
on these kinds of products and that this bill will shield the producer
of dietary supplements from all liability.
I offer this amendment to ensure that makers of these highly
dangerous and highly unregulated drugs are held

[[Page H975]]

accountable for their action. Let me give my colleagues an example, Mr.
Chairman.
Under the Food, Drug and Cosmetic Act, all laws that apply to food
apply to dietary supplements unless they explicitly exempt them. That
means that this bill limits the liability of dietary supplementing
manufacturers because it does not specifically exempt. Unlike
hamburgers and French fries, dietary supplements often have hidden side
effects that often have immediate and dire consequences, but yet we
have a bill that is broad based with a broad sweep and no limitation,
and unlike drugs, these supplements neither have to test for side
effects nor report them to the Federal Government.
Let me tell my colleagues what is worse. This bill is retroactive. So
ongoing lawsuits of people already punished, already injured, all
suffering, already damaged, already dead are going to be voided by the
passage of this lawsuit. How incredulous.
I cannot imagine that my colleagues would have such intent because I
would never attribute sinister intent to the drafters of this
legislation, and I would only ask my colleagues, let us fix it today on
the floor of the House. Let us show America that there is no intent to
go back into the courtroom of ongoing litigation where family members
are gathered in great, if you will, disadvantage because of what has
happened to them or a loved one and ask them to give up a legitimate
claim, and then let us not go forward with a bill that takes a broad
brush and denies one's right to get into the court on these dietary
supplements and nutritional supplements.

{time} 1645

The current system is not sufficient to deal with this threat.
Consider ephedra, for example, which the FDA started investigating in
1997. It is now 7 years, 18,000 adverse reactions, and at least 155
deaths later; and it is just now being pulled off the shelves. So it is
important to note, Mr. Chairman, that this amendment is simply to
clarify this bill.
I would ask my colleagues to support this amendment and to recognize
that this can help us together clarify the rights of those who are
already in court and the rights of those going forward on the
nutritional supplements that have brought great damage to many
Americans.
Mr. KELLER. Mr. Chairman, I rise in opposition to the amendment.
Mr. Chairman, I will ask my colleagues to vote ``no'' on the Jackson-
Lee amendment dealing with diet pills on a couple of grounds:
First, the Personal Responsibility in Food Consumption Act applies to
weight gain, obesity, or any health condition that is associated with a
person's weight gain, such as diabetes, high cholesterol,
cardiovascular disease. It has nothing to do with weight loss and
nothing to do with diet pills, and this amendment confusingly implies
weight loss can be weight gain, which does not make sense.
The second part of the amendment, which is somewhat odd, is the
amendment would bizarrely require Members to vote for a provision that
states that being fat is ``generally associated'' with brain
dysfunction and neurological disorders. Specifically, it says,
``neurological damage or any other complication which may be generally
associated with a person's weight gain or obesity.''
Not all people who might be overweight are suffering from
neurological problems. I can tell you that it is possible to be both
fat and happy. So I do not understand the reason for this amendment.
Mr. SENSENBRENNER. Mr. Chairman, will the gentleman yield?
Mr. KELLER. I yield to the gentleman from Wisconsin.
Mr. SENSENBRENNER. Mr. Chairman, I would ask the gentleman if Santa
Claus is both fat and happy?
Mr. KELLER. Reclaiming my time, Mr. Chairman, I believe he is.
Mr. WATT. Mr. Chairman, I move to strike the last word.
Ms. JACKSON-LEE of Texas. Mr. Chairman, will the gentleman yield?
Mr. WATT. I yield to the gentlewoman from Texas.
Ms. JACKSON-LEE of Texas. Mr. Chairman, I thank the distinguished
ranking member very much for yielding to me. I know we can come to a
meeting of the minds on this.
Mr. Chairman, I want to take my good friend from Florida somewhat to
task because it is inaccurate what he has just represented to this
body. It is totally inaccurate. These supplements claim to help prevent
weight gain or they claim to help or to prevent obesity. This
legislation does apply. Clear and simply, it does apply.
What is going to happen is that we are hiding the ball. This
legislation will pass and thousands will be thrown out of the
courthouse. I have already cited for my colleagues that there have been
18,000 adverse reactions from ephedra, with 155 deaths.
Let me advise how this bill impacts the problem that I am citing by
way of my amendment and why it needs to be fixed. First of all, section
3(a) of the bill bans qualified civil liability action. That already
goes to those who have had an adverse reaction or those who are dead
and their family members are trying to go into court. Section 4(5) of
the bill defines qualified civil liability actions as actions involving
a qualified product. Section 4(4) of the bill defines a qualified
product as a food under the Food, Drug and Cosmetic Act. Section
32(f)(f) of the Food, Drug and Cosmetic Act says a dietary supplement
shall be deemed to be a food within the meaning of this chapter.
This bill is a direct correlation to the Food, Drug and Cosmetic Act;
and ephedra, as a dietary supplement, is, therefore, a food, with
18,000 adverse reactions and 155 deaths. You can equate it to those who
are allergic to dairy products, for example.
Again, these attempts are not to condemn the food industry globally.
We all enjoy and need the nutrients produced by the agricultural
industry as well as the food industry, the processing food industry,
the fast-food industry that produces meals that sometimes may be the
only meals that people have. But what we are saying, Mr. Chairman, and
what we are saying to this body, you cannot hide the ball.
We hope that this is not a sinister intent, a back-door intent to
have tort reform and to close the courthouse door. If it is not, you
cannot argue with the fact that this is a food supplement covered by
this bill. And I would say to my colleagues, when they do not want to
accept any amendment, we may have a disagreement on this bill; but,
frankly, we do not have a disagreement on the fact that people's rights
may be denied. They think it is the food industry; I think it is
individuals.
If my colleague thinks that the bill does not apply to dietary
supplements, then why does he not accept the amendment? It does no harm
anyhow. The language of the bill is ambiguous at best, dangerous at
worst. But more importantly, I have just run through an explanation why
food supplements are included. So I do not think we should take a
chance. I think we should protect the American public and provide
support for this amendment so in fact we have the opportunity to
clarify it.
I do not see where this bill clarifies a distinction between food and
the food supplement and the fact as to whether or not someone would
make a claim that would subject them to a lawsuit. I am concerned, and
I would think my colleagues should be concerned. This does not have to
be time spent in frivolity. It can be a serious attempt at legislation.
All we have to do is balance it.
If there is some substance to this idea that fast-food chains are
being subjected unmercifully to lawsuits, then just imagine those
without the kinds of resources that you might think a business would
have and individually are sued by this industry. That is unfair. And
those who are now in the process of suing because they have actually
been harmed.
The very language of this bill that I think is overreaching anyhow,
which is clearly retroactive, to me, suggests that we have a real
problem. In fact, I would ask the question whether this bill will
withstand any sort of court review; and if I can stretch it, whether it
will withstand any kind of constitutional muster. Because I know hidden
somewhere somebody's rights have been denied.
I would ask my colleagues to again support this equitable amendment
that allows for the bill to be modified to protect individual rights
and the ideas of food supplements being included.

[[Page H976]]

Mr. SENSENBRENNER. Mr. Chairman, I move to strike the requisite
number of words.
Mr. Chairman, first of all, this bill has nothing to do with weight
loss products, whether they are food supplements or drugs that require
a prescription or drugs that are sold over the counter. It only deals
with food that makes people increase their weight so that they become
obese and have all of the medical problems related to obesity.
Now, on page 5 of the bill, ``Qualified Product'' is defined in
section 201(f) of the Federal Food, Drug and Cosmetic Act; and this
section of the Food, Drug and Cosmetic Act reads as follows: ``The term
food means when an article is used for food or drink for man or other
animals, chewing gum and articles used for components of any such
article.''
So all of what the gentlewoman from Texas complains about is not
covered in this bill because it is not a qualified product as defined
by the bill.
And I will not yield to the gentlewoman. She has been up twice to try
to explain what she is trying to do. She is just plain wrong.
And, secondly, there is one other thing that I think is very
relevant, and this comes from the black and white provisions of her own
amendment as in the Congressional Record. It talks about
neuropsychological damage or other complications which may generally be
associated with a person's weight gain or obesity.
Now, to say that someone who is obese has got psychological damage, I
think, gets to the point of the gentleman from Florida saying that
there are a lot of people who can be both fat and happy.
If the gentlewoman from Texas wants to draft an amendment to aim at
the target, this was not it because the gun is shooting in the wrong
direction.
Ms. JACKSON-LEE of Texas. Mr. Chairman, I ask unanimous consent to
make an inquiry.
The CHAIRMAN pro tempore (Mr. Bass). Is there objection to the
request of the gentlewoman from Texas?
Mr. KELLER. Objection.
The CHAIRMAN pro tempore. Objection is heard.
The question is on the amendment offered by the gentlewoman from
Texas (Ms. Jackson-Lee).
The question was taken; and the Chairman pro tempore announced that
the noes appeared to have it.
Ms. JACKSON-LEE of Texas. Mr. Chairman, I demand a recorded vote.
The CHAIRMAN pro tempore. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentlewoman from Texas (Ms.
Jackson-Lee) will be postponed.

Amendment No. 8 Offered by Mr. Watt

Mr. WATT. Mr. Chairman, I offer an amendment.
The CHAIRMAN pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 8 offered by Mr. Watt:
Strike section 3(b).

Mr. WATT. Mr. Chairman, I will try to be brief, because we have been
here for a long time. I do want to compliment all of my colleagues who
have really explored the issues related to this bill vigorously, and I
think it has been a good discussion.
This final amendment, and I do think it is the final amendment, would
strike section 3(b) of the bill. Section 3(b) provides that 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.
The effect of that language is to make this bill retroactive in its
application applied to pending lawsuits as of the date the law becomes
effective. Now, there are not currently any pending lawsuits, because
all of them have been dismissed, as I have indicated previously. But
between now and the time that this legislation may be enacted, other
lawsuits may be pending or may be filed; and so this amendment is aimed
at protecting against retroactive application of this bill because I
think it is just unfair and almost un-American to change the rules of a
legal process in the middle of the action.
Under this bill, any banned lawsuit would be dismissed by a court
whether it has just been filed, a judgment is imminent, or a judgment
has been entered and post-judgment proceedings and appeal may even be
in process. This requirement is inherently unfair to litigants who may
have devoted countless time and resources based upon their legitimate
reliance on the laws of the States at the time they initiated their
lawsuits.
Whether or not there are pending cases that would be dismissed under
the bill, the retroactivity of the bill is bad policy and bad
precedent. Our Nation prides itself on a fair, impartial, and open
judiciary. This provision, however, undermines the judiciary and erodes
public confidence in the system. The American people cannot have faith
that any of their rights are secure if we change the rules of the game
midway through a legal process. The judicial system, State and Federal,
is a vital part of our constitutional framework, and we should not be
changing the rules in midstream.
As a litigator, I know how deeply our citizens feel about rights they
advance in court. I know the personal stress and financial strain that
lawsuits may impose on an entire family, and I know how contrary this
provision is to fundamental notions of fairness and fair play. I urge
my colleagues to support the amendment to eliminate the retroactivity
of this bill.

{time} 1700

Mr. SENSENBRENNER. Mr. Chairman, I rise in opposition to the
amendment.
This amendment would prevent the application of H.R. 339 to pending
lawsuits and must be defeated. The amendment would essentially gut the
entire bill by preventing the dismissal of pending lawsuits. If such an
amendment passed, all that would happen is that hundreds of additional
cases would be filed right before the date of enactment. That is
exactly what happened in Texas and Mississippi when those States
recently enacted legal reforms that did not preclude pending cases.
Such an amendment, as offered by the gentleman from North Carolina,
would therefore make the current situation much worse. The Supreme
Court has held that Congress can impose rules that apply retroactively,
if it does so, pursuant to an economic policy. Review of retroactive
legislation under the due process clause is no more than a variety of
judicial regulation of economic activity under the concept of
substantive due process.
The general principles the Supreme Court has handed down regarding
the constitutionality of retroactive legislation under due process
principles were summarized by the court as follows: ``The strong
deference accorded legislation in the field of national economic policy
is no less applicable when that legislation is applied retroactively.
Provided that the retroactive application of a statute is supported by
a legitimate legislative purpose, furthered by rational means, judgment
about the wisdom of such legislation remain within the legislative and
exclusive branches. The retroactive legislation does not have to meet a
burden not faced by legislation that has only future effects, but that
burden is met simply by showing that the retroactive application of the
legislation is itself justified by a rational legislative purpose,''
and that is Pension Benefit Guaranty Corporation v. R.A. Gray & Company
decided by the Supreme Court in 1984.
This bill aims to save the national food industry from bankruptcy due
to pending lawsuits and is an enactment pursuant to a national economic
policy. The Supreme Court also upheld the retroactive application of
the liability provisions of the Multiemployer Pension Plan Amendments
Act of 1980 against the challenge that the withdrawal liability
provisions violated the fifth amendment taking of property clause.
The provision of the Act that required an employer to fund its share
of a pension plan was viewed by the court as a law regulating economic
activity to promote the common good. Therefore, the law was not an
invalid taking of property for which compensation was due. That is
Connolly v. Pension Benefit Guaranty Corporation, 1986.
This amendment is a bad one. It is designed to gut the legislation
and should be defeated.
Ms. JACKSON-LEE of Texas. Mr. Chairman, I move to strike the last
word.
I rise to support of the Watt amendment, and would offer to say to
the

[[Page H977]]

gentleman from Wisconsin (Mr. Sensenbrenner), this is a vital
amendment. This happens to seek to eliminate the retroactivity of the
very point that I previously made regarding the ongoing and pending
lawsuits, particularly on the Ephedra issue.
Let me cite an example to show how deadening and devastating this
legislation would be passed with the anti or retroactive language in it
that would then stop at the courthouse steps; more seriously, stop at
the bench of the judge those ongoing litigation matters that are now
pending.
I gave some comfort by suggesting that I would not attribute anything
misdirected or mean-spirited to this legislation; I assume there is
some purpose for it, but I cannot imagine why we would want to close
the door on those who have suffered.
Let me cite an example. Earline Cook has filed a wrongful death claim
in the United States District Court for Western Missouri against
several companies after her husband passed away in July 2001 after
taking a product containing Ephedra. Mr. Cook was a decorated military
veteran who died after ingesting an Ephedra-based product while playing
basketball on a military base. The autopsy and military investigation
concluded that death was caused by the Ephedra-based product. The
military base recently named the gymnasium after Mr. Cook in
recognition of his dedication and service to the Army and his efforts
to stay in top physical shape during his military career.
Her case is currently pending, and I will submit the actual lawsuit
into the Record because, for some reason, my colleagues seem to think
we are giving up smoke, and I would tend to think this is to the
contrary.
This is so important because dietary supplements are covered by this
legislation. Section 321(ff) of the Food, Drug and Cosmetic Act says
``a dietary supplement shall be deemed to be a food within the meaning
of this chapter,'' and this language is referred to in this
legislation.
So the Watt amendment is an excellent amendment because the gentleman
is trying to protect the likes of Ms. Cook who is innocent, and while
she has filed in a Federal court, unbeknownst to her, we are on the
floor of the House undermining, cancelling her lawsuit. Might I just
say, what a tragedy.
I imagine we could name a number of serious incidents that are
ongoing that have resulted in lawsuits regarding Ephedra, and maybe we
can list a number of other dietary supplements as food supplements as
section 321(ff) suggests. It is the height of hypocrisy that the case
that is pending is that of a decorated military veteran who was
attempting to stay at full measure to serve his country and who was
playing basketball on a military base. This lawsuit is ongoing, and I
cannot understand why we would want to douse this widow's opportunity
to petition in a court of law.
We have already said that the judicial system works, and I cannot
imagine why we are here today playing with the lives and the ability to
achieve justice of those who are here in this country, and particularly
as this particular case suggests, those are willing to give the
ultimate measure for this Nation.
This is a straightforward amendment which carries with it the weight
of rightness, and that is that you cannot have retroactivity in this
bill. That would deny people the right to access their rights in court.
My conclusion is that I beg to differ with anyone who would say that
this is not covered, food supplements are not covered in this bill
because they need to read section 321(ff). The Food, Drug and Cosmetic
Act says ``a dietary supplement shall be deemed to be a food within the
meaning of this chapter.'' It is covered, and this amendment should
pass. I ask my colleagues to support the Watt amendment.
Mr. Chairman, I urge everyone to vote ``yes'' to the first of my two
amendments, ``MJ_004'' to ensure that dietary supplement manufacturers
don't get away with murder.
This bill bans not only so-called ``obesity-related suits,'' but any
civil action that ``relate[s] to . . . a person's consumption of a
qualified product . . . and any health condition that is associated
with a person's weight gain.'' Note that the person with the health
condition does not have to be obese, they only have to have a health
condition that obese people also have. Heart disease and kidney
problems would be some of those diseases, for example. Hidden in this
convoluted definition is the fact that this bill will shield the
producers of dietary supplements from all liability. I offer this
amendment to ensure that makers of these highly dangerous--and highly
unregulated--drugs are held accountable for their actions.
Under the Food, Drug and Cosmetic Act, all laws that apply to
``food'' apply to dietary supplements unless they explicitly exempt
them. That means this bill also limits the liability of dietary
supplement manufacturers. Unlike hamburgers and french fries, dietary
supplements often have hidden side effects that have immediate and dire
consequences. And unlike drugs, these supplements neither have to test
for side effects nor report them to the Federal Government.
Our current system isn't sufficient to deal with this threat.
Consider ephedra. The FDA started investigating ephedra in 1997. It's
now 7 years, 18,000 adverse reactions, and at least 155 deaths later--
and it's just now being pulled off the shelves. Despite the reports of
strokes, seizures, heart attacks, and sudden death, ephedra was allowed
to stay on the market.
Now that ephedra is gone, new diet drugs are already taking its
place: bitter orange, aristolochic acid, and usnic acid. All three have
been associated with kidney and liver problems. And while the FDA
claims that it will look into the matter, we all saw what happened the
last time the FDA began its cumbersome process. How many people will
die this time? While the government works through its bureaucratic
process, we have to let people have their day in court to stop these
tragic events from happening again.
Vote ``aye'' for this amendment and make sure that this bill is
limited to what it claims to stop--frivolous obesity cases, and not
meritorious claims against dangerous drug manufacturers.

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
MISSOURI, CENTRAL DIVISION

EARLINE COOK, surviving spouse of HENRY L. COOK, deceased,
and administrator of the Estate of Henry L. Cook,
deceased,

Plaintiff,

CYTODYNE TECHNOLOGIES, INC., a New Jersey corporation, Serve:
Robert Chinery, Jr., Cytodyne Technologies, Inc., 2231
Landmark Place, Manasquan, New Jersey 08736,
and
NUTRAQUEST, INC., a New Jersey corporation, Serve: Robert
Chinery, Jr., Nutraquest, Inc., 2231 Landmark Place,
Manasquan, New Jersey 08736,
and
ROBERT CHINERY, JR., individually,
and
PHOENIX LABORATORIES, INC., a New York corporation, Serve:
Mel L. Rich, President and CEO, Phoenix Laboratories,
Inc., 140 Lauman Lane, Hicksville, New York 11801,
and
GENERAL NUTRITION CENTER, INC., d/b/a GNC, a Pennsylvania
corporation, Serve: General Nutrition Center, Inc., c/o
United States Corporation Company, 221 Bolivar, Jefferson
City, MO 65101,
and
GENERAL NUTRITION CORPORATION, d/b/a GNC, a Pennsylvania
corporation, Serve: Michael K. Meyers, President & CEO,
General Nutrition Corporation, Inc., 921 Penn Avenue,
Pittsburgh, PA 15222,
and
FICTITIOUS DEFENDANTS A,B,C, and D,

Defendants.

COMPLAINT

COMES NOW, Plaintiff, individually, on behalf of the class
of claimants entitled to recover for the wrongful death of
Henry L. Cook and as Administrator of the Estate of Henry L.
Cook, and for her Complaint states and alleges as follows:
Type of Case
1. This is a wrongful death action brought against
Defendants under Missouri law, Sec. 537.080 RSMo. for the
wrongful death of Henry L. Cook on or about July 17, 2001.
This action is brought by Plaintiff, Earline Cook, both
individually as the surviving spouse of Henry L. Cook, as
representative for the class claimants under Sec. 537.080
RSMo. and as the duly appointed administrator of the Estate
of Henry L. Cook. Decedent Henry L. Cook used Defendants',
Cytodyne Technologies, Inc. (hereinafter ``Cytodyne'')/
Nutraquest, Inc. (hereinafter ``Nutraquest'') product--
Xenadrine RFA-1--preceding his death on or about July 17,
2001. As a direct and proximate result of taking this
product decedent Henry L. Cook was caused to suffer
physical injury and death by sudden cardiopulmonary
arrest. The Xenadrine RFA-1 product is manufactured by
Cytodyne/Nutraquest and Defendant Phoenix Laboratories,
Inc. (hereinafter ``Phoenix''), and was sold and marketed
through General Nutrition Center, Inc. and/or Defendant
General Nutrition Corporation (hereinafter jointly
referred to as ``GNC'') retail outlets. The events giving
rise to Henry L. Cook's death occurred in St. Joseph,
Missouri. This action seeks monetary damages for the
personal injuries and wrongful death caused by

[[Page H978]]

the Xenadrine RFA-1 product, and for Earline Cook's loss
of the consortium of her husband and for all the damages
allowed by law.
Parties
2. Plaintiff, Earline Cook, is an adult resident of St.
Joseph, Buchanan County, Missouri.
3. Defendant, Cytodyne Technologies, Inc. (``Cytodyne'') is
a corporation organized and existing under the laws of New
Jersey. Cytodyne's principal place of business is located at
2231 Landmark Place, Manasquan, New Jersey, 08736. At all
times relevant hereto, Cytodyne was in the business of
manufacturing, marketing, selling and distributing Xenadrine
RFA-1.
4. Defendant Cytodyne is a foreign corporation that is not
registered or qualified to do business in the State of
Missouri. Cytodyne does not have a registered agent for
service of process in Missouri. Cytodyne Technologies may be
served through any of its officers at its principal place of
business at 2231 Landmark Place, Manasquan, New Jersey,
08736.
5. Defendant, Nutraquest, Inc. (``Nutraquest'') is a
corporation organized and existing under the laws of New
Jersey. Nutraquest's principal place of business is located
at 2231 Landmark Place, Manasquan, New Jerseys, 08736.
Nutraquest, Inc. was formerly known as Cytodyne Technologies,
Inc. At all times relevant hereto, Nutraquest was in the
business of manufacturing, marketing, selling and
distributing Xenadrine RFA-1.
6. Defendant Nutraquest is a foreign corporation that is
not registered or qualified to do business in the State of
Missouri. Nutraquest does not have a registered agent for
service of process in Missouri. Nutraquest may be served
through any of its officers at its principal place of
business at 2231 Landmark Place, Manasquan, New Jersey,
08736.
7. Defendant Robert Chinery, Jr. (``Chinery'') is an
individual residing in New Jersey. At all times relevant
hereto, Chinery was the founder, sole shareholder and a
corporate officer of Cytodyne/Nutraquest. On information and
belief, prior to the formation of Cytodyne/Nutraquest,
Chinery created, developed, tested, manufactured, distributed
and/or sold Xenadrine RFA-1 (under that name or a different
name) individually. Chinery personally had knowledge of and
knowingly participated in the actions of Cytodyne/Nutraquest
giving rise to liability as set forth within this Complaint.
Additionally, upon information and belief, Chinery owns 100%
of Cytodyne/Nutraquest's stock and Cytodyne/Nutraquest is so
dominated by Chinery that to avoid injustice the corporate
form of Cytodyne/Nutraquest should be disregarded and Chinery
should be held personally and individually responsible for
the actions of Cytodyne/Nutraquest.
8. Defendant, Phoenix Laboratories, Inc. (``Phoenix'') is a
corporation organized and existing under the laws of the
State of New York. Phoenix's principal place of business is
located at 140 Lauman Lane, Hicksville, New York, 11801. At
all times relevant hereto, Phoenix was in the business of
manufacturing, formulating, producing, marketing, selling and
distributing Xenadrine RFA-1.
9. Defendant Phoenix is a foreign corporation that is not
registered or qualified to do business in the State of
Missouri. Phoenix does not have a registered agent for
service of process within the State of Missouri. Defendant
Phoenix may be served through Mel L. Rich, its President and
Chief Executive Officer, at its principal place of business,
140 Lauman Lane, Hicksville, New York 11801.
10. Defendant General Nutrition Center, Inc. d/b/a GNC is a
corporation organized and existing under the laws of the
State of Pennsylvania. Defendant General Nutrition Center,
Inc. is not registered or qualified to do business in the
State of Missouri with its principal place of business at 921
Penn Avenue, Pittsburgh, Pennsylvania. Defendant General
Nutrition Center, Inc. may be served through its registered
agent in Missouri, the United States Corporation Company, 221
Bolivar, Jefferson City, Missouri 65101.
11. Defendant General Nutrition Corporation d/b/a/ GNC is a
corporation organized and existing under the laws of the
State of Pennsylvania. Defendant General Nutrition
Corporation is not registered or qualified to do business in
the State of Missouri. Defendant General Nutrition
Corporation does not have a registered agent for service of
process within the State of Missouri. Defendant General
Nutrition Center, Inc. may be served through Mr. Michael K.
Meyers, its President and Chief Executive Officer at its
principal place of business, 921 Penn Avenue, Pittsburgh,
Pennsylvania 15222.
12. Defendant General Nutrition Center, Inc. and Defendant
General Nutrition Corporation are both names under which the
same business and/or corporation has operated and may be
jointly referred to within this Complaint as GNC.
13. Fictitious Defendants, A, B, C, and D, are those
persons, franchisees, sales representatives, district
managers, firms or corporations whose actions, inactions,
fraud, scheme to defraud, and/or other wrongful conduct
caused or contributed to the injuries sustained by Plaintiff
and Decedent, whose true and correct names are unknown to
Plaintiff at this time, but will be substituted by Amendment
when ascertained. At all times relevant hereto, the
fictitious defendants were in the business of marketing,
formulating, producing, selling and distributing Xenadrine
RFA-1.
14. At all times relevant hereto, Defendants were in the
business of manufacturing, marketing, producing, formulating,
selling and distributing Xenadrine RFA-1.
Jurisdiction and Venue
15. The matter in controversy significantly exceeds,
exclusive of interest and costs, the sum of $75,000 and is
properly before this Court.
16. This Court has personal jurisdiction over Cytodyne/
Nutraquest pursuant to Sec. 506.500 RSMo. because this cause
of action accrued in Missouri and arises our of (1) the
transaction of business within the State of Missouri by
Cytodyne/Nutraquest and its employees; and (2) the commission
of tortious acts by Cytodyne/Nutraquest and its employees
within the State of Missouri.
17. This Court has personal jurisdiction over Chinery
pursuant to Sec. 506.500 RSMo. because this cause of action
accrued in Missouri and arises out of (1) the transaction of
business within the State of Missouri by Chinery through his
alter ego--Cytodyne/Nutraquest; and (2) the commission of
tortuous acts by Chinery through his alter ego--Cytodyne/
Nutraquest within the State of Missouri. Additionally,
Chinery, as a corporate officer of Cytodyne/Nutraquest,
knowingly participated in the actions and conduct of
Cytodyne/Nutraquest giving rise to the liability set forth
herein and therefore (1) transacted business within the
State of Missouri; and (2) committed tortuous acts within
the State of Missouri.
18. This Court has personal jurisdiction over Phoenix
pursuant to Sec. 506.500 RSMo. because this cause of action
accrued in Missouri and arises out of (1) the transaction of
business within the State of Missouri by Phoenix and its
employees; and (2) the commission of tortious acts by Phoenix
and its employees within the State of Missouri.
19. This Court has personal jurisdiction over GNC pursuant
to Sec. 506.500 RSMo. because this cause of action accrued in
Missouri and arises out of (1) the transaction of business
within the State of Missouri by GNC and its employees; and
(2) the commission of tortious acts by GNC and its employees
within the State of Missouri.
20. This Court has personal jurisdiction over Fictitious
Defendants A, B, C and D pursuant to Sec. 506.500 RSMo.
because this cause of action accrued in Missouri and arises
out of (1) the transaction of business within the State of
Missouri by Fictitious Defendants A, B, C and D and their
employees; and (2) the commission of tortious acts by
Fictitious Defendants A, B, C and D and their employees
within the State of Missouri.
21. Plaintiff's claim for wrongful death accrued in
Missouri. On information and belief, the Xenadrine RFA-1 was
purchased and ingested by decedent in Missouri--specifically
in St. Joseph, Missouri within the Western District of
Missouri. Decedent resided in St. Joseph, Missouri within the
Western District of Missouri at the time of his death.
Plaintiff currently resides in St. Joseph, Missouri within
the Western District of Missouri. Defendants include an
individual non-resident and foreign corporations, one or more
of which has been and are currently engaged in business,
directly or by authorized agent, in Missouri. Defendants
GNC's registered agent is specifically located within this
division of the Western District of Missouri in Jefferson
City, Missouri.
22. Venue is appropriate before this Court pursuant to
Sec. 508.010 RSMo as defendants include both individuals and
corporations and all defendants are non-residents of
Missouri. Furthermore, Defendant GNC's registered agent is
located in Jefferson City, Missouri.
General Allegations
23. Decedent Henry Lee Cook was born on June 16, 1953 in
Yazoo City, Mississippi. Decedent Henry L. Cook and Plaintiff
Earline Cook were married on January 21, 1985.
24. At the time of his death, decedent Henry L. Cook was
employed with the United States Army as a military police
officer, having attained the rank of Sergeant Major.
25. Prior to his death, decedent Henry L. Cook was in good
health and physical condition and regularly engaged in
physical activities such as running, playing basketball and
other exercise. Mr. Cook regularly worked out at the gym at
work approximately four times a week and regularly engaged in
physical activities.
26. Upon information and belief, at a point in time
relatively shortly before his death, decedent Henry L. Cook
purchased Xenadrine RFA-1 from Defendant GNC's store located
in St. Joseph, Missouri. Thereafter, up to and including on
the date of his death, decedent Henry L. Cook regularly took
the Xenadrine RFA-1 product in accordance with the
recommended dosages contained on the Xenadrine RFA-1
bottle.
27. On July 17, 2001, decedent Henry L. Cook ingested the
recommended dosage of Xenadrine RFA-1 product in St. Joseph,
Missouri.
28. At approximately 11:30-11:45 a.m. on July 17, 2001,
decedent Henry L. Cook--while playing basketball at Ft.
Leavenworth, Kansas--collapsed and was non-responsive.
Military personnel on the scene immediately attempted to
administer cardio pulmonary resuscitation until emergency
personnel arrived. Emergency personnel attempted electronic
shock treatment but were unable to revive decedent Henry L.
Cook. Henry L. Cook was immediately transported via ambulance
to the local hospital where he was pronounced dead at 12:50
p.m.
29. Because of the sudden and unexpected nature of decedent
Henry L. Cook's death,

[[Page H979]]

the United States Army conducted an investigation into
decedent Henry L. Cook's cause of death.
30. During the investigation, military investigators seized
a bottle of Xenadrine RFA-1. At the time of decedent Henry L.
Cook's death, the bottle of Xenadrine RFA-1 had 52 of the
original 120 pills remaining in the bottle.
31. An autopsy was performed on decedent Henry L. Cook on
July 18, 2001.
32. Toxicology reports from the autopsy revealed ephedrine
and pseudoephedrine in the heart blood (respectively 140 ng/
ml and 47.1 ng/ml).
33. Toxicology reports from the autopsy also revealed
ephedrine and pseudoephedrine in the femoral blood
(respectively 46.6 ng/ml and 18.5 ng/ml).
34. The autopsy results support the conclusion that the
ephedrine contained in the Xenadrine RFA-1 ingested by
decedent Henry L. Cook prior to his death caused or
contributed to cause decedent Henry L. Cook's death.
35. As a direct and proximate result of defendants' acts
and omissions, plaintiff's decedent Henry L. Cook was caused
to suffer injuries and death. Plaintiff has been caused to
suffer damages in the past from the loss of her husband, and
will continue to experience this loss in the future. Upon the
trial of this case, Plaintiff will request the Jury to
determine fair compensation for the amount of loss which
Plaintiff and others have incurred in the past and will
likely incur in the future as a result of the wrongful death
of Henry L. Cook.
Xenadrine RFA-1 and Defendants' Knowledge Concerning its
Dangerous Propensities
36. Xenadrine RFA-1 is an ephedra-containing dietary
supplement/herbal product.
37. In addition to ephedra, Xenadrine RFA-1 contains other
constituent ``herbal'' products that increase and potentiate
the effects of ephedrine. Likewise, Xenadrine RFA-1 contains
ephedrine alkaloids other than ephedine.
38. Defendants did manufacture, design, formulate, produce,
package, market, sell and/or distribute Xenadrine RFA-1.
Mr. KELLER. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, I am asking my colleagues to vote no on the Watt
amendment dealing with the pending lawsuits.
This amendment was raised at the Committee on the Judiciary. The
gentleman made similar, consistent arguments, and it was shot down at
the time.
I would like to give three reasons why my colleagues should vote no.
First of all, there is a good policy reason to vote no. Second, the
Supreme Court will uphold this; and third, we have done similar
language before in other bipartisan bills.
First, with respect to the reason of policy, if such an amendment
were passed, all that would happen is we would have hundreds if not
more cases filed before the date of enactment, and we know that after
this bill passes today, it has to pass the other body where we have
Senator McConnell as the chief sponsor, so there would be a time frame
where there would be an incentive to find the right jury and the right
judge.
We have an idea that is sort of their game plan because the one
witness the Democrats called at the Committee on the Judiciary hearing
was a man named John Banzhaf who said, ``Somewhere there is going to be
a judge and a jury that will buy this, and once we get the first
verdict, as we did with tobacco, it will open the floodgates.'' So it
does away with that incentive that clearly they want.
Second, the Supreme Court has held that Congress can impose rules
retroactively if it does so pursuant to an economic policy. The Pension
Benefit Guaranty Corporation v. R.A. Gray is one example. Clearly a
bill that aims to save the food industry from potentially bankrupting
litigation like that of the tobacco industry is pursuant to a national
economic policy, especially since it is the largest private sector
employer in the country.
Third, this exact same language appeared in H.R. 1036, the Protection
of Lawful Commerce and Arms Act, which enjoyed wide bipartisan support
in this House and received 285 votes. I know the gentleman from North
Carolina (Mr. Watt) is going to say yes, but that bill was defeated in
the Senate. Fair enough, it was defeated in the Senate, but it was
because gun control measures were added to it. There were no changes to
this particular provision. It has enjoyed broad bipartisan support in
the past. I urge my colleagues to vote no on the Watt amendment.
Mr. SCOTT of Virginia. Mr. Speaker, I move to strike the requisite
number of words.
Mr. Chairman, just because we made something retroactive in the past
does not make it a good idea. It is a bad idea to pass legislation that
retroactively affects pending lawsuits.
Mr. WATT. Mr. Chairman, will the gentleman yield?
Mr. SCOTT of Virginia. I yield to the gentleman from North Carolina.
Mr. WATT. Mr. Chairman, I just want to briefly make it clear that my
colleagues are trying to make it appear that this is a customary
practice of ours. It really is a rare thing to make a piece of
legislation retroactive, and even rarer to make it retroactive to
pending lawsuits that have already been filed.
I have got a whole list of things that we have filed that one could
argue might be better candidates for retroactive application than this
particular piece of legislation that our own committee has passed out.
And to hang our hats on something that the Senate did not even think
was worthy of passing on to the President is a real stretch.
I am going to resist the temptation to start reading the bills that
the Committee on the Judiciary has passed without retroactivity but
things like the Bill Emerson Good Samaritan Food Donation Act, which
limited the liability of those who donate food to a charity, we did not
even make that retroactive in its application.
There are a bunch of things that we passed, and I am the first to
concede, as the chairman acknowledged in his statement, I am not
arguing this is unconstitutional or even unprecedented, I think it is
unfair and unnecessary in this case.
The CHAIRMAN pro tempore (Mr. Bass). The question is on the amendment
offered by the gentleman from North Carolina (Mr. Watt).
The question was taken; and the Chairman pro tempore announced that
the noes appeared to have it.
Mr. WATT. Mr. Chairman, I demand a recorded vote.
The CHAIRMAN pro tempore. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from North
Carolina (Mr. Watt) will be postponed.

Sequential Votes Postponed in Committee of the Whole

The CHAIRMAN pro tempore. Pursuant to clause 6 of rule XVIII,
proceedings will now resume on those amendments on which further
proceedings were postponed in the following order: Amendment No. 10
offered by the gentlewoman from Texas (Ms. Jackson-Lee); and amendment
No. 8 offered by the gentleman from North Carolina (Mr. Watt).
The first electronic vote will be conducted as a 15-minute vote. The
remaining electronic vote will be conducted as a 5-minute vote.

Amendment No. 10 Offered by Ms. Jackson-Lee of Texas

The CHAIRMAN pro tempore. The pending business is the demand for a
recorded vote on the amendment offered by the gentlewoman from Texas
(Ms. Jackson-Lee) on which further proceedings were postponed and on
which the noes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.

Recorded Vote

The CHAIRMAN pro tempore. A recorded vote has been demanded.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 166,
noes 250, not voting 17, as follows:

[Roll No. 52]

AYES--166

Abercrombie
Ackerman
Allen
Andrews
Baca
Baldwin
Ballance
Becerra
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boswell
Brady (PA)
Brown (OH)
Brown, Corrine
Capps
Capuano
Cardin
Carson (IN)
Carson (OK)
Case
Chandler
Clay
Clyburn
Conyers
Crowley
Cummings
Davis (AL)
Davis (CA)
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dicks
Dingell
Doggett
Dooley (CA)
Doyle
Emanuel
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Frost
Gonzalez
Green (TX)
Grijalva
Gutierrez
Hastings (FL)
Hill
Hinchey
Hoeffel
Holt
Honda
Hooley (OR)
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick
Kind
Kleczka
Lampson

[[Page H980]]

Langevin
Lantos
Larson (CT)
Leach
Lee
Levin
Lewis (GA)
Lofgren
Lowey
Majette
Maloney
Markey
Marshall
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McDermott
McGovern
McIntyre
McNulty
Meehan
Meek (FL)
Meeks (NY)
Michaud
Millender-McDonald
Miller (NC)
Miller, George
Mollohan
Moore
Moran (VA)
Murtha
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pascrell
Pastor
Payne
Price (NC)
Rahall
Rangel
Reyes
Ross
Rothman
Roybal-Allard
Rush
Sabo
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Sandlin
Schakowsky
Schiff
Scott (VA)
Serrano
Sherman
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Spratt
Stark
Strickland
Stupak
Tauscher
Thompson (MS)
Tierney
Towns
Turner (TX)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Waters
Watson
Watt
Waxman
Weiner
Wexler
Woolsey
Wu
Wynn

NOES--250

Aderholt
Akin
Alexander
Bachus
Baird
Baker
Ballenger
Barrett (SC)
Bartlett (MD)
Barton (TX)
Bass
Beauprez
Bereuter
Biggert
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehlert
Boehner
Bonilla
Bonner
Bono
Boozman
Boucher
Boyd
Bradley (NH)
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Burgess
Burns
Burr
Burton (IN)
Buyer
Calvert
Camp
Cannon
Cantor
Capito
Carter
Castle
Chabot
Chocola
Coble
Cole
Collins
Cooper
Costello
Cox
Cramer
Crane
Crenshaw
Cubin
Culberson
Cunningham
Davis (FL)
Davis (TN)
Davis, Jo Ann
Davis, Tom
Deal (GA)
DeLay
DeMint
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Dreier
Duncan
Dunn
Edwards
Ehlers
Emerson
English
Everett
Feeney
Ferguson
Flake
Foley
Forbes
Ford
Fossella
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gilchrest
Gillmor
Gingrey
Goode
Goodlatte
Gordon
Granger
Graves
Green (WI)
Greenwood
Gutknecht
Hall
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Hobson
Hoekstra
Holden
Hostettler
Houghton
Hulshof
Hunter
Hyde
Isakson
Issa
Istook
Jenkins
John
Johnson (CT)
Johnson (IL)
Johnson, Sam
Jones (NC)
Keller
Kelly
Kennedy (MN)
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
Kolbe
LaHood
Larsen (WA)
Latham
LaTourette
Lewis (CA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Lucas (KY)
Lucas (OK)
Lynch
Manzullo
Matheson
McCotter
McCrery
McHugh
McInnis
McKeon
Menendez
Mica
Miller (MI)
Miller, Gary
Moran (KS)
Murphy
Musgrave
Myrick
Nethercutt
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Osborne
Ose
Otter
Oxley
Paul
Pearce
Pence
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Platts
Pombo
Pomeroy
Porter
Portman
Pryce (OH)
Putnam
Quinn
Radanovich
Ramstad
Regula
Rehberg
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Royce
Ruppersberger
Ryan (OH)
Ryan (WI)
Ryun (KS)
Saxton
Schrock
Scott (GA)
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Simpson
Smith (MI)
Smith (NJ)
Smith (TX)
Souder
Stearns
Stenholm
Sullivan
Sweeney
Tancredo
Tanner
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thompson (CA)
Thornberry
Tiahrt
Tiberi
Toomey
Turner (OH)
Upton
Vitter
Walden (OR)
Walsh
Wamp
Weldon (FL)
Weldon (PA)
Weller
Whitfield
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)

NOT VOTING--17

Bell
Berkley
Cardoza
Davis (IL)
Frank (MA)
Gephardt
Gibbons
Goss
Harman
Hinojosa
Kucinich
Miller (FL)
Pelosi
Rodriguez
Tauzin
Udall (CO)
Wicker

Announcement by the Chairman Pro Tempore

The CHAIRMAN pro tempore (Mr. Bass) (during the vote). Members are
advised there are 2 minutes remaining in this vote.

{time} 1738

Mr. YOUNG of Alaska and Mr. BLUNT changed their vote from ``aye'' to
``no.''
So the amendment was rejected.
The result of the vote was announced as above recorded.

Amendment No. 8 Offered by Mr. Watt

Recorded Vote

[Roll No. 53]

AYES--164

Abercrombie
Ackerman
Allen
Andrews
Baca
Baldwin
Ballance
Becerra
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boswell
Boyd
Brady (PA)
Brown (OH)
Brown, Corrine
Capps
Capuano
Cardin
Carson (IN)
Carson (OK)
Case
Chandler
Clay
Clyburn
Coble
Conyers
Costello
Crowley
Cummings
Davis (AL)
Davis (CA)
Davis (FL)
DeGette
Delahunt
DeLauro
Deutsch
Dingell
Doggett
Doyle
Emanuel
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Ford
Frost
Gonzalez
Green (TX)
Grijalva
Gutierrez
Hastings (FL)
Hill
Hinchey
Hoeffel
Holt
Honda
Hooley (OR)
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick
Kleczka
Lampson
Lantos
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Lofgren
Lowey
Majette
Maloney
Markey
Marshall
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McDermott
McGovern
McIntyre
McNulty
Meehan
Meek (FL)
Meeks (NY)
Menendez
Millender-McDonald
Miller (NC)
Miller, George
Mollohan
Moore
Murtha
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pascrell
Pastor
Payne
Price (NC)
Rahall
Rangel
Reyes
Ross
Rothman
Roybal-Allard
Rush
Ryan (OH)
Sabo
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Sandlin
Schakowsky
Schiff
Scott (VA)
Serrano
Sherman
Skelton
Slaughter
Snyder
Solis
Spratt
Stark
Strickland
Stupak
Tauscher
Thompson (CA)
Thompson (MS)
Tierney
Towns
Turner (TX)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Waters
Watson
Watt
Waxman
Weiner
Wexler
Woolsey

NOES--249

Aderholt
Akin
Alexander
Bachus
Baird
Baker
Ballenger
Barrett (SC)
Bartlett (MD)
Barton (TX)
Bass
Beauprez
Bereuter
Biggert
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehlert
Boehner
Bonilla
Bonner
Boozman
Boucher
Bradley (NH)
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Burgess
Burns
Burr
Burton (IN)
Buyer
Calvert
Camp
Cannon
Cantor
Capito
Carter
Castle
Chabot
Chocola
Cole
Collins
Cooper
Cox
Cramer
Crane
Crenshaw
Cubin
Culberson
Cunningham
Davis (TN)
Davis, Jo Ann
Davis, Tom
Deal (GA)
DeFazio
DeLay
DeMint
Diaz-Balart, L.
Diaz-Balart, M.
Dicks
Dooley (CA)
Doolittle
Dreier
Duncan
Dunn
Edwards
Ehlers
Emerson
English
Everett
Feeney
Ferguson
Flake
Foley
Forbes
Fossella
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gilchrest
Gillmor
Gingrey
Goode
Goodlatte
Gordon
Granger
Graves
Green (WI)
Greenwood
Gutknecht
Hall
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Hobson
Hoekstra
Holden
Hostettler
Houghton
Hulshof
Hyde
Isakson
Issa
Jenkins
John
Johnson (CT)
Johnson (IL)
Johnson, Sam
Jones (NC)
Keller
Kelly
Kennedy (MN)
Kind
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
Kolbe
LaHood
Langevin
Larsen (WA)
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas (KY)
Lucas (OK)
Lynch
Manzullo
Matheson
McCotter
McCrery
McHugh
McInnis
McKeon
Mica
Michaud
Miller (MI)
Miller, Gary
Moran (KS)
Moran (VA)
Murphy
Musgrave
Myrick
Nethercutt
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Osborne
Ose
Otter
Oxley
Paul
Pearce
Pence
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Platts
Pombo
Pomeroy
Porter
Portman
Pryce (OH)
Putnam
Quinn
Radanovich
Ramstad
Regula
Rehberg
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)

[[Page H981]]

Rohrabacher
Ros-Lehtinen
Royce
Ruppersberger
Ryan (WI)
Ryun (KS)
Saxton
Schrock
Scott (GA)
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Simpson
Smith (MI)
Smith (NJ)
Smith (TX)
Smith (WA)
Souder
Stearns
Stenholm
Sullivan
Sweeney
Tancredo
Tanner
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thornberry
Tiahrt
Tiberi
Toomey
Turner (OH)
Upton
Vitter
Walden (OR)
Walsh
Wamp
Weldon (FL)
Weldon (PA)
Weller
Whitfield
Wilson (NM)
Wilson (SC)
Wolf
Wu
Wynn
Young (AK)
Young (FL)

NOT VOTING--20

Bell
Berkley
Bono
Cardoza
Davis (IL)
Frank (MA)
Gephardt
Gibbons
Goss
Harman
Hinojosa
Hunter
Istook
Kucinich
Miller (FL)
Pelosi
Rodriguez
Tauzin
Udall (CO)
Wicker

Announcement by the Chairman Pro Tempore

The CHAIRMAN pro tempore (during the vote). Members are advised there
are 2 minutes remaining in this vote.

{time} 1745

So the amendment was rejected.
The result of the vote was announced as above recorded.
The CHAIRMAN pro tempore. The question is on the committee amendment
in the nature of a substitute, as amended.
The committee amendment in the nature of a substitute, as amended,
was agreed to.
The CHAIRMAN pro tempore. Under the rule, the Committee rises.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
Simpson) having assumed the chair, Mr. Bass, Chairman pro tempore of
the Committee of the Whole House on the State of the Union, reported
that that Committee, having had under consideration the bill (H.R. 339)
to prevent frivolous lawsuits against the manufacturers, distributors,
or sellers of food or non-alcoholic beverage products that comply with
applicable statutory and regulatory requirements, pursuant to House
Resolution 552, he reported the bill back to the House with an
amendment adopted by the Committee of the Whole.
The SPEAKER pro tempore. Under the rule, the previous question is
ordered.
Is a separate vote demanded on the amendment to the committee
amendment in the nature of a substitute adopted by the Committee of the
Whole? If not, the question is on the committee amendment in the nature
of a substitute.
The committee amendment in the nature of a substitute was agreed to.
The SPEAKER pro tempore. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. SENSENBRENNER. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. This will be a 15-minute vote.
The vote was taken by electronic device, and there were--yeas 276,
nays 139, not voting 18, as follows:

[Roll No. 54]

YEAS--276

Aderholt
Akin
Alexander
Bachus
Baird
Baker
Ballenger
Barrett (SC)
Bartlett (MD)
Barton (TX)
Bass
Beauprez
Bereuter
Berry
Biggert
Bilirakis
Bishop (GA)
Bishop (UT)
Blackburn
Blunt
Boehlert
Boehner
Bonilla
Bonner
Bono
Boozman
Boucher
Boyd
Bradley (NH)
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Burgess
Burns
Burr
Burton (IN)
Buyer
Calvert
Camp
Cannon
Cantor
Capito
Carson (OK)
Carter
Castle
Chabot
Chocola
Coble
Cole
Collins
Cooper
Cox
Cramer
Crane
Crenshaw
Cubin
Culberson
Cunningham
Davis (AL)
Davis (TN)
Davis, Jo Ann
Davis, Tom
Deal (GA)
DeFazio
DeLay
DeMint
Diaz-Balart, L.
Diaz-Balart, M.
Dicks
Dooley (CA)
Doolittle
Doyle
Dreier
Duncan
Dunn
Edwards
Ehlers
Emerson
English
Everett
Feeney
Ferguson
Flake
Foley
Forbes
Ford
Fossella
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gilchrest
Gillmor
Gingrey
Goode
Goodlatte
Gordon
Granger
Graves
Green (TX)
Green (WI)
Greenwood
Gutknecht
Hall
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Hill
Hobson
Hoekstra
Holden
Hooley (OR)
Hostettler
Houghton
Hulshof
Hunter
Hyde
Isakson
Issa
Istook
Jenkins
John
Johnson (CT)
Johnson (IL)
Johnson, Sam
Jones (NC)
Keller
Kelly
Kennedy (MN)
Kind
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
Kolbe
LaHood
Lampson
Langevin
Larsen (WA)
Larson (CT)
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas (KY)
Lucas (OK)
Lynch
Manzullo
Marshall
Matheson
McCotter
McCrery
McHugh
McInnis
McIntyre
McKeon
McNulty
Menendez
Mica
Michaud
Miller (MI)
Miller, Gary
Moore
Moran (KS)
Moran (VA)
Murphy
Musgrave
Myrick
Nethercutt
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Osborne
Ose
Otter
Oxley
Pearce
Pence
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Platts
Pombo
Pomeroy
Porter
Portman
Pryce (OH)
Putnam
Quinn
Radanovich
Ramstad
Regula
Rehberg
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Ross
Royce
Ruppersberger
Ryan (WI)
Ryun (KS)
Sandlin
Saxton
Schrock
Scott (GA)
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Simpson
Skelton
Smith (MI)
Smith (NJ)
Smith (TX)
Smith (WA)
Souder
Spratt
Stearns
Stenholm
Sullivan
Sweeney
Tancredo
Tanner
Tauscher
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thompson (CA)
Thornberry
Tiahrt
Tiberi
Toomey
Turner (OH)
Turner (TX)
Upton
Vitter
Walden (OR)
Walsh
Wamp
Weldon (FL)
Weldon (PA)
Weller
Whitfield
Wilson (NM)
Wilson (SC)
Wolf
Wu
Wynn
Young (AK)
Young (FL)

NAYS--139

Abercrombie
Ackerman
Allen
Andrews
Baca
Baldwin
Ballance
Becerra
Berman
Bishop (NY)
Blumenauer
Boswell
Brady (PA)
Brown (OH)
Brown, Corrine
Capps
Capuano
Cardin
Case
Chandler
Clay
Clyburn
Conyers
Costello
Crowley
Cummings
Davis (CA)
Davis (FL)
DeGette
Delahunt
DeLauro
Deutsch
Dingell
Doggett
Emanuel
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Frost
Gonzalez
Grijalva
Gutierrez
Hastings (FL)
Hinchey
Hoeffel
Holt
Honda
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick
Kleczka
Lantos
Lee
Levin
Lewis (GA)
Lipinski
Lofgren
Lowey
Majette
Maloney
Markey
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McDermott
McGovern
Meehan
Meek (FL)
Meeks (NY)
Millender-McDonald
Miller (NC)
Miller, George
Mollohan
Murtha
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pascrell
Pastor
Paul
Payne
Price (NC)
Rahall
Rangel
Reyes
Rothman
Roybal-Allard
Rush
Ryan (OH)
Sabo
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Schakowsky
Schiff
Scott (VA)
Serrano
Sherman
Slaughter
Snyder
Solis
Stark
Strickland
Stupak
Thompson (MS)
Tierney
Towns
Udall (NM)
Van Hollen
Velazquez
Visclosky
Waters
Watson
Watt
Waxman
Weiner
Wexler
Woolsey

NOT VOTING--18

Bell
Berkley
Cardoza
Carson (IN)
Davis (IL)
Frank (MA)
Gephardt
Gibbons
Goss
Harman
Hinojosa
Kucinich
Miller (FL)
Pelosi
Rodriguez
Tauzin
Udall (CO)
Wicker

Announcement by the Speaker Pro Tempore

The SPEAKER pro tempore (Mr. Simpson) (during the vote). Members are
advised that there are 2 minutes remaining in this vote.

{time} 1803

So the bill was passed.
The result of the vote was announced as above recorded.
The title of the bill was amended so as to read: ``A bill to prevent
legislative and regulatory functions from being usurped by civil
liability actions brought or continued against food manufacturers,
marketers, distributors, advertisers, sellers, and trade associations
for claims of injury relating to a person's weight gain, obesity, or
any health condition associated with weight gain or obesity.''.
A motion to reconsider was laid on the table.

____________________