[Congressional Record Volume 151, Number 52 (Tuesday, April 26, 2005)]
[Senate]
[Pages S4260-S4262]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. McCONNELL:
  S. 908. A bill to allow Congress, State legislatures, and regulatory 
agencies to determine appropriate laws, rules, and regulations to 
address the problems of weight gain, obesity, and health conditions 
associated with weight gain or obesity; to the Committee on the 
Judiciary.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the text 
of the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 908

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

     SECTION 1. SHORT TITLE.

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

     SEC. 2. FINDINGS; PURPOSE.

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

     SEC. 3. PRESERVATION OF SEPARATION OF POWERS.

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

     SEC. 4. DEFINITIONS.

         In this Act:
         (1) Engaged in the business.--The term ``engaged in the 
     business'' means a person who manufactures, markets, 
     distributes, advertises, or sells a qualified product in the 
     person's regular course of trade or business.
         (2) Manufacturer.--The term ``manufacturer'' means, with 
     respect to a qualified product, a person who is lawfully 
     engaged in the business of manufacturing the product.
         (3) Person.--The term ``person'' means any individual, 
     corporation, company, association, firm, partnership, 
     society, joint stock company, or any other entity, including 
     any governmental entity.
         (4) Qualified product.--The term ``qualified product'' 
     means a food (as defined in section 201(f) of the Federal 
     Food, Drug, and Cosmetic Act (21 U.S.C. 321(f))).
         (5) Qualified civil liability action.--
         (A) In general.--Subject to subparagraph (B), the term 
     ``qualified civil liability action'' means a civil action 
     brought by any person against a manufacturer, marketer, 
     distributor, advertiser, or seller of a qualified product, or 
     a trade association, for damages, penalties, declaratory 
     judgment, injunctive or declaratory relief, restitution, or

[[Page S4262]]

     other relief arising out of, or related to a person's 
     accumulated acts of consumption of a qualified product and 
     weight gain, obesity, or a health condition that is 
     associated with a person's weight gain or obesity, including 
     an action brought by a person other than the person on whose 
     weight gain, obesity, or health condition the action is 
     based, and any derivative action brought by or on behalf of 
     any person or any representative, spouse, parent, child, or 
     other relative of that person.
         (B) Exception.--A qualified civil liability action shall 
     not include--
         (i) an action based on allegations of breach of express 
     contract or express warranty, provided that the grounds for 
     recovery being alleged in such action are unrelated to a 
     person's weight gain, obesity, or a health condition 
     associated with a person's weight gain or obesity;
         (ii) an action based on allegations that--

         (I) a manufacturer or seller of a qualified product 
     knowingly violated a Federal or State statute applicable to 
     the marketing, advertisement, or labeling of the qualified 
     product with intent for a person to rely on that violation;
         (II) such person individually and justifiably relied on 
     that violation; and
         (III) such reliance was the proximate cause of injury 
     related to that person's weight gain, obesity, or a health 
     condition associated with that person's weight gain or 
     obesity; or

         (iii) an action brought by the Federal Trade Commission 
     under the Federal Trade Commission Act (15 U.S.C. 41 et seq.) 
     or by the Federal Food and Drug Administration under the 
     Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.).
         (6) Seller.--The term ``seller'' means, with respect to a 
     qualified product, a person lawfully engaged in the business 
     of marketing, distributing, advertising, or selling a 
     qualified product.
         (7) State.--The term ``State'' includes each of the 
     several States of the United States, the District of 
     Columbia, the Commonwealth of Puerto Rico, the Virgin 
     Islands, Guam, American Samoa, and the Commonwealth of the 
     Northern Mariana Islands, and any other territory or 
     possession of the United States, and any political 
     subdivision of any such place.
         (8) Trade association.--The term ``trade association'' 
     means any association or business organization (whether or 
     not incorporated under Federal or State law) that is not 
     operated for profit, and 2 or more members of which are 
     manufacturers, marketers, distributors, advertisers, or 
     sellers of a qualified product.
                                 ______