[Congressional Record (Bound Edition), Volume 150 (2004), Part 3]
[House]
[Pages 3836-3873]
[From the U.S. Government Publishing Office, www.gpo.gov]




            PERSONAL RESPONSIBILITY IN FOOD CONSUMPTION ACT

  The SPEAKER pro tempore (Mr. Smith of Texas). Pursuant to House

[[Page 3837]]

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 
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

[[Page 3838]]

     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 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

[[Page 3839]]

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.''
  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

[[Page 3840]]

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.
  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.

[[Page 3841]]

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.
  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

[[Page 3842]]

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 
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

[[Page 3843]]

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 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

[[Page 3844]]

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--
       (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:

[[Page 3845]]

       (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. 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 
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

[[Page 3846]]

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.
  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

[[Page 3847]]

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.
  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.

[[Page 3848]]

  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 
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

[[Page 3849]]

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. 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

[[Page 3850]]

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''.

                              {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 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

[[Page 3851]]

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. 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 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

[[Page 3852]]

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 liability law in the United States and a bill that we want to 
produce. And, unfortunately, this bill lacks two words.

[[Page 3853]]

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.''

[[Page 3854]]

  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 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

[[Page 3855]]

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 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

[[Page 3856]]

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 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

[[Page 3857]]

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 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

[[Page 3858]]

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 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.

[[Page 3859]]

  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 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:

[[Page 3860]]



                             [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
     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

[[Page 3861]]


     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 
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

  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 129, 
noes 285, not voting 19, as follows:

                             [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

[[Page 3862]]

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

  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 141, 
noes 276, not voting 16, as follows:

                             [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
     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

[[Page 3863]]

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 
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

[[Page 3864]]

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.


          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--

[[Page 3865]]

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 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

[[Page 3866]]

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 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.

[[Page 3867]]


  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.
  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

[[Page 3868]]

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 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.

[[Page 3869]]

  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,

           v.

     CYTODYNE TECHNOLOGIES, INC., a New Jersey corporation, Serve: 
         Robert Chinery, Jr., Cytodyne Technologies, Inc., 0000 
         Landmark Place, Manasquan, New Jersey 08736,
           and
     NUTRAQUEST, INC., a New Jersey corporation, Serve: Robert 
         Chinery, Jr., Nutraquest, Inc., 0000 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 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

[[Page 3870]]

     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, 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.

[[Page 3871]]

  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
     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)

[[Page 3872]]


     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

  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 164, 
noes 249, not voting 20, as follows:

                             [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)
     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.

[[Page 3873]]

  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.

                          ____________________