[Congressional Record (Bound Edition), Volume 151 (2005), Part 17]
[House]
[Pages 23081-23089]
[From the U.S. Government Publishing Office, www.gpo.gov]




        PERSONAL RESPONSIBILITY IN FOOD CONSUMPTION ACT OF 2005

  The SPEAKER pro tempore. Pursuant to House Resolution 494 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. 554.

                              {time}  1036


                     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. 554) 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, with Mrs. Miller of Michigan in the chair.
  The Clerk read the title of the bill.
  The CHAIRMAN. Pursuant to the rule, the bill is considered read the 
first time.
  Under the rule, the gentleman from Wisconsin (Mr. Sensenbrenner) and 
the gentleman from North Carolina (Mr. Watt) each will control 30 
minutes.
  The Chair recognizes the gentleman from Wisconsin (Mr. 
Sensenbrenner).
  Mr. SENSENBRENNER. Madam Chairman, I yield myself such time as I may 
consume.
  Madam Chairman, I rise in support of H.R. 554, the Personal 
Responsibility in Food Consumption Act of 2005.
  The food service industry employs some 12 million people, making it 
the Nation's largest private sector employer. This vital sector of our 
economy has recently come under attack by lawsuits alleging it should 
pay monetary damages based upon legal theories holding it liable for 
the overconsumption of its products.
  H.R. 554, the Personal Responsibility in Food Consumption Act, would 
correct this disturbing trend. Introduced by the gentleman from Florida 
(Mr. Keller), this legislation would generally prohibit frivolous 
obesity- or weight gain-related claims against the food industry. It 
would, however, allow obesity-related claims to go forward in several 
circumstances, including cases in which a State or Federal law was 
broken and as a result a person suffered harm. Under H.R. 554, cases 
could go forward in which a company violates an expressed contract or 
warranty.
  Also, because H.R. 554 applies only to claims based on weight gain or 
obesity, lawsuits could still proceed if, for example, someone gets 
sick from consuming tainted food.
  This legislation passed the House of Representatives during the 108th 
Congress in the form of H.R. 339 with a large bipartisan vote of 276 to 
139.
  According to a recent Gallup Poll, ``Nearly nine in 10 Americans 
oppose holding the fast-food industry legally responsible for diet-
related health problems of people who eat that kind of food on a 
regular basis . . . those who describe themselves as overweight are no 
more likely than others to blame the fast-food industry for obesity-
related health problems or to favor lawsuits against the industry.''
  As one judge put it: ``If a person knows or should know that eating 
copious orders of supersized McDonald's

[[Page 23082]]

products is unhealthy and may result in weight gain, it is not the 
place of the law to protect them from their own excesses.''
  Even the Los Angeles Times has editorialized against such lawsuits, 
stating: ``If kids are chowing down to excess on junk food, aren't 
their parents responsible for cracking down? And if parents or other 
grown-ups overindulge, isn't it their fault, not that of the purveyors 
of fast food? . . . Why boost their food bills just because of legal 
jousting? People shouldn't get stuffed, but this line of litigation 
should.''
  The threat posed to our national economy is clear. Personal injury 
attorney and obesity lawsuit litigator John Banzhaf said recently, 
``You may not like it . . . but we'll find a judge. And then we'll find 
a jury'' that will find restaurants liable for their customers' 
overeating. According to news reports of a recent legal conference, a 
panel of four lawyers argued that the overweight lawsuit movement 
``would need to extend beyond the obvious targets like restaurants, 
fast-food chains, and food manufacturers to bring about substantial 
policy changes . . . ''
  Dr. Gerald Musante, a clinical psychologist who trained at Duke 
University Medical Center, has worked for more than 30 years with 
thousands of obese patients. He is the founder of the Structure House, 
a residential weight loss facility in Durham, North Carolina. Dr. 
Musante said the following at a hearing in the other body 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.''
  Even the chairman of the American Council for Fitness and Nutrition, 
Susan Finn, has written that ``if you're 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 . . . ''
  Besides threatening to erode values of personal responsibility, the 
lawsuit campaign against the food industry threatens the separation of 
powers. Nationally coordinated lawsuits seek to accomplish through 
litigation what has not been achieved by legislation and the democratic 
process. As one mastermind behind the lawsuits against the food 
industry has stated, ``If the legislatures won't legislate, then the 
trial lawyers will litigate.''
  Madam Chairman, the Personal Responsibility in Food Consumption Act 
will help preserve the separation of powers, support the principle of 
personal responsibility, and help protect the largest private sector 
employer in the United States. I urge all my colleagues to support this 
important legislation.
  Madam Chairman, I reserve the balance of my time.
  Mr. WATT. Madam Chairman, I yield myself such time as I may consume.
  Madam Chairman, I rise in opposition to this legislation. And as I 
said the last time we debated it, I do not rise because I am a 
supporter of frivolous lawsuits or lawsuits even that some of the 
people have used the legal system to pursue. I rise in opposition to 
the bill because I think it is an overreaction; and, indeed, I think it 
is perhaps an ultimate attestation to the fact that many of my 
colleagues have lost confidence and faith in the legal system on the 
one hand or that, regardless of what the legal system does, if it does 
not yield for them the result that they are seeking, they are willing 
to compromise any principle that they have professed to stand for to 
achieve the result that they wish to achieve.
  H.R. 554 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 it would 
prevent State law enforcement officials from bringing legal claims to 
enforce their own consumer protection laws.
  Simply look at the provisions of the bill. Section 4(5) would prevent 
any legal action related to any ``health condition that is associated 
with a person's weight gain or obesity.''

                              {time}  1045

  As a result, the bill would prevent persons who develop heart disease 
and diabetes from dietary supplements such as Ephedra and Phen-fen from 
being able to obtain redress if they gained weight. Even worse, the 
bill bans these lawsuits in a retroactive way. So it would throw out 
dozens of Ephedra and Phen-fen cases currently pending before courts. 
This is a far cry from the concerns that led to this legislation 
originally, some of which I have the same concerns about.
  H.R. 554 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 ``person,'' and the term ``person'' is defined 
to include any ``governmental entity.'' That means States attorneys 
general will be prevented from pursuing actions for deceptive practices 
and false advertising and other practices that are illegal against the 
food industry.
  Again, this is a vast departure from most of the so-called tort 
reform bills considered by the Congress, which are drafted to apply to 
private lawsuits, and is a vast departure from the original purpose of 
this bill and the problems it was designed to deal with.
  Since the predecessor to H.R. 554 was first introduced last term, 18 
State legislatures have enacted so-called cheeseburger laws to prohibit 
certain claims from their courts. While most of those enacted apply 
retroactively, others, that is, Kansas, Arizona, Colorado, do not. Some 
provide for a stay of discovery; others do not. Some establish 
affirmative defenses; others do not. That is our State law taking 
effect.
  In short, in the considered judgment of each of these 18 State 
legislatures, laws have been enacted that best serve their States. The 
bill completely preempts those laws and brings to a screeching halt the 
work of 26 other States that have been working on pending legislation. 
It also disrupts the process in some States that have combined obesity 
bills with menu labeling requirements as part of their overall health 
enhancing legislative scheme.
  What is the price that we are willing to pay to get the result that 
we are seeking? Have we lost confidence in our State and Federal court 
systems that have systematically thrown out most of the lawsuits that 
have been filed against the food industry using this ``fat theory,'' as 
it is commonly referred to? Have we lost confidence in our whole 
federalist form of government in which tort law has been particularly 
the province of the States? Have we lost confidence in our State 
legislatures that are in the middle of responding in their particular 
States to any problems that may be on the horizon in this area?
  We have instead cast ourselves as the imperial Congress because the 
same people who came to this Congress, saying that they believe in 
States rights, have now shown they do not care about States rights. 
What they want is a result that they can control and they can dictate.
  That is really what this bill is about, and it is unfortunately not 
only this bill. There is another bill right behind this one that will 
be up today or tomorrow that does the same thing in the gun context.
  So I do not think we are going to hear a lot of people out here 
talking about this bill today. I do not see many people on the floor. 
It will be like a tree falling in the forest. We do not know whether it 
is having any impact out there or not. We will pass it out of here. It 
will become a political vehicle to cozy up to the food industry, but at 
what price? At what price?
  I would just say the people who maintain that H.R. 554 is necessary 
to make people responsible for their own choices and to thwart the 
unwarranted imposition of legal costs and fees on the food industry are 
just not being upfront with us about this one.

[[Page 23083]]

  This bill insulates an entire industry from liability; and more 
importantly, it undermines our State judicial and legislative systems 
that should be and are in the process of dealing with this to the 
extent that they have identified it as a problem.
  In that sense, the bill represents yet another arrogant attempt by 
this Congress to impose its will on the States, and I urge my 
colleagues to get a grip and understand what we are about to do here. 
There are some things that are more important, and our judicial system 
is working its way through these cases, is dismissing them where they 
need to be dismissed; and where that is not happening, our State 
legislatures are taking care of this problem. This is not a Federal 
issue, nor should it be.
  I urge opposition to the bill.
  Madam Chairman, I reserve the balance of my time.
  Mr. SENSENBRENNER. Madam Chairman, I yield 2 minutes to the gentleman 
from Ohio (Mr. Chabot).
  Mr. CHABOT. Madam Chairman, I am pleased to be a cosponsor of this 
legislation that will help curtail frivolous lawsuits. It is reassuring 
to see the Congress is taking measures to help rid our court system of 
lawsuits that are costly and hurt those consumers and businesses in our 
country. Twelve million people in this country are employed by 
businesses in the food industry, making it the Nation's largest private 
sector employer. This is an industry that has a direct impact on the 
Nation's economy, and these fast-food obesity lawsuits are opposed by 
nearly nine in 10 Americans.
  The idea that holding the food industry liable for the excess of some 
individuals will combat obesity is unfounded. Individuals, not 
restaurants, are responsible for food choices that they make freely in 
their own daily lives.
  In addition, the food addressed by this legislation is legal and 
unadulterated, and the rights of individuals to pursue lawsuits 
resulting from claims like the mislabeling of food or food safety 
issues is preserved. Our country has a history of providing its 
citizens with a safe and affordable food supply. It is unacceptable to 
make arguments that certain types of food that are sold in certain 
types of restaurants as a result of consumer demand are somehow 
dangerous and that the average consumer must bear the burden in higher 
food costs because of the overindulgence by some individuals who file 
these types of lawsuits.
  This bill is not about whether fast food causes obesity. The bill is 
about self-responsibility.
  Today, the Congress of the United States is saying to a select group 
of lawyers that laws are not intended to protect people from these 
types of excesses, from essentially eating too much, and the courtrooms 
were never meant for that reason. It is really pretty simple. If you 
eat too much, you get fat. It is your fault. Do not try to blame 
somebody else.
  Mr. WATT. Madam Chairman, I yield 5 minutes to the gentleman from 
Virginia (Mr. Scott).
  Mr. SCOTT of Virginia. Madam Chairman, I thank the gentleman for 
yielding me time.
  Madam Chairman, in addition to the violation of principles of 
federalism outlined by my colleague from North Carolina, this piece of 
legislation is another piece in which we are taking upon ourselves the 
right to try a case in the legislative branch instead of respecting the 
separation of powers by allowing cases to be tried in the judicial 
branch where they belong.
  Instead of respecting separation of powers and honoring the rule of 
law and standing behind the principle that laws should be applied 
equally to all, we are once again giving special treatment to special 
cases.
  The majority in Congress has apparently already decided the proper 
outcome of these cases and is adjusting the law accordingly just for 
these cases, rather than trusting our laws and our courts to hear 
evidence from both sides and decide the cases on their merits. If these 
are losing cases, then let the judicial process make that decision. 
Even if they are frivolous cases, the judicial branch has ways to 
sanction people for bringing frivolous cases; but once again, special 
interests are receiving, in these cases, special treatment.
  Instead of having to go through the courts like everybody else, where 
they do not know the outcome of the case until evidence is presented 
and the law is applied, these defendants will get to try their cases in 
the legislative branch, where popularity and politics prevail. Even 
financial contributions are allowed.
  Meanwhile, everyone else without special privileges is stuck trying 
their cases in the courts, where they have an unbiased judge and jury, 
instead of favorable politicians, and they are stuck with the same law 
that applies to everybody else.
  This is not the only recent example of special treatment. Just a few 
months ago, we changed the law for Terri Schiavo because her parents 
knew how to reach someone in Congress; and we ignored the multitude of 
judicial decisions that had already been decided, and we changed the 
law for that case, not cases like that, just for that case.
  A few years ago, in a child custody case in the Washington, DC, area 
that case was decided by special legislative language in a 
transportation appropriations bill. The Committee on Education and the 
Workforce likewise considered a case on appeal between the Department 
of Labor and a bank and voted to retroactively change the law to fix 
the result on behalf of the bank. Later today, as my colleague from 
North Carolina has pointed out, the House will probably pass 
legislation to fix the result in firearms legislation so that the 
firearms industry will get to try their cases and their issues in the 
legislative branch, rather than being stuck with the law that applies 
to everybody else.
  Mr. Chairman, trying cases in the legislative branch is bad policy. 
We should honor the rule of law and apply the law in all cases. There 
will always be special interests, but we should not make special laws 
for those who can get to a Congressman to introduce a bill on their 
behalf. Let us honor and respect the rule of law to be applied equally 
to all and reject this legislation.
  Mr. SENSENBRENNER. Mr. Chairman, I yield 3 minutes to the gentleman 
from Utah (Mr. Cannon).
  Mr. CANNON. Mr. Chairman, I thank the gentleman from Wisconsin for 
the time.
  Unfortunately, the food industry has been targeted by a variety of 
unfounded legal claims which allege businesses should pay monetary 
damages and be subject to equitable remedies based on novel legal 
theories of liability for the overconsumption of its legal products.
  Obesity is a problem in America, but it is not evident that the 
availability of high-fat food or restaurants are the sole cause. A 
number of studies have shown that a lack of physical activity, that is, 
not exercising, has contributed to the rise of obesity and not solely 
one's caloric intake.
  In the Subcommittee on Commercial and Administrative Law, which I 
chaired last Congress, we explored the threat the food industry and its 
workers face from frivolous litigation, the threat to personal 
responsibility posed by the proliferation of such litigation, and the 
need for passage of the Personal Responsibility in Food Consumption 
Act.

                              {time}  1100

  Since the gentleman from Florida (Mr. Keller) introduced a similar 
bill last year, 21 States have passed laws banning these so-called 
obesity lawsuits.
  The opponents of this bill will claim that this shows that Congress 
should not intervene. In reality, it means we must. Without a complete 
ban on these frivolous lawsuits, rogue trial lawyers, and I have many 
trial lawyers who are friends and who work very hard to get the 
appropriate kind of compensation for people who are injured, but many 
of these rogue trial lawyers will forum shop until they find a State 
and a district that gets them the exorbitant payday that they seek.
  I would remind my colleagues that John Banzhaf, an attorney who 
testified last year against this bill, stated

[[Page 23084]]

in 2003, ``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.''
  It is unlikely that lawsuits against food establishments over their 
menus will make us healthier. Such lawsuits will threaten thousands of 
jobs and, more importantly, such lawsuits send the wrong message 
regarding personal choices and personal responsibility. Do we want our 
kids growing up believing it is always someone else's fault?
  Mr. Chairman, it is not only important, but also fundamental that 
Americans have access to courts to address their legitimate wrongs and 
the harms that 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 and the moral 
fiber of Americans who should be self-reliant and responsible for their 
choices.
  Mr. Chairman, I urge my colleagues to support the underlying bill, 
H.R. 554.
  Mr. WATT. Mr. Chairman, I reserve the balance of my time.
  Mr. SENSENBRENNER. Mr. Chairman, I yield 3 minutes to the gentleman 
from Virginia (Mr. Goodlatte), the chairman of the Committee on 
Agriculture.
  Mr. GOODLATTE. Mr. Chairman, I rise in strong support of H.R. 554, 
the Personal Responsibility in Food Consumption Act, and I thank the 
gentleman from Wisconsin for moving this legislation to the floor. This 
legislation will help prevent frivolous lawsuits that allege that the 
consumption of lawful food products caused injuries resulting from 
obesity or weight gain.
  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 that it should be liable for the misuse or ``over-consumption'' 
of its legal food products by others.
  It is common sense that individuals should take responsibility for 
their own dietary and eating habits. Unfortunately, trial lawyers have 
ulterior motives for these lawsuits. They have made their intentions 
quite clear, calling the fast food industry the next tobacco. They 
estimate potential profits of $40 billion from obesity-related 
lawsuits. It is crucial that something be done to guard against these 
aggressive attacks.
  These ill-conceived lawsuits require businesses to devote hard-earned 
dollars to litigate unmerited claims. In order to help ensure that 
America continues to be a good 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.
  This bill also protects our Nation's farmers and ranchers from the 
potentially far-reaching effects of these lawsuits. American 
agriculture produces the safest, most affordable and abundant food 
supply in the world and should be protected from trial lawyers' 
attempts to reach as far up the food chain as possible with unfounded 
claims seeking unjust enrichment.
  While preventing frivolous claims, this legislation would protect 
legitimate lawsuits. It would allow claims to go forward in several 
circumstances, including cases in which a State or Federal law was 
broken. Other types of food-related lawsuits not dealing with obesity 
would also be protected.
  The American public understands the importance of this effort. 
According to a recent Gallup poll, almost 90 percent of Americans 
oppose holding restaurant owners responsible for the diet-related 
health problems of regular fast food consumers.
  H.R. 554 is a common sense bill that will protect legitimate 
businesses from frivolous lawsuits, and I urge my colleagues to support 
this important legislation.
  Mr. WATT. Mr. Chairman, I yield 5 minutes to the gentleman from 
Arkansas (Mr. Snyder).
  Mr. SNYDER. Mr. Chairman, I appreciate this discussion today. The 
points I want to make are really more in the spirit of questions. I 
come out of a State legislative body where the proponents of a bill 
such as the gentleman from Wisconsin would have to undergo a rigorous, 
almost cross-examination. We function here differently. But I do have 
some questions, and I think I will just present them in my comments and 
if somebody wants to comment on them they can.
  I heard one of the previous speakers say, well, this is a simple 
bill. If you eat something and get fat, you should be responsible for 
it. I think that is the attitude of the great majority of Americans, 
that you should be responsible for what you eat. But I want to make two 
broad points.
  First of all, I want to read the definition of food, and it refers to 
another section of code. It is very short. This is from section 201(f), 
21 U.S.C. 301, section 201(f). ``The term `food' means (1) articles 
used for food or drink for man or other animals, (2), chewing gum, and 
(3) articles used for components of any such article.''
  So we are having a discussion here today about the fact, as the 
previous speaker had said, it is simple, you eat, you get fat, you 
should be responsible.
  The problem is, this bill language makes no reference to only the 
caloric containing components of food. It is very deliberately written 
I believe to include all food additives, no matter how small amounts, 
and the fact that the great majority of food additives have zero 
caloric intake and would have no relationship to obesity, I think that 
is a flaw in the bill. That leads to the second point.
  The bill specifically mentions weight gain and obesity. Well, I think 
most of us have a sense of what obesity is. Weight gain is a whole 
different issue, and weight gain may occur not from obesity, not from 
getting fat, not from putting on too many calories; weight gain can 
occur for a variety of medical reasons related to a variety of 
different causes.
  For example, I mean probably all of us have had a mom or a grandmom 
or an uncle to whom we say, hey, I noticed your legs are swelling 
again. Fluid retention. Fluid retention. Now, that can be from a 
variety of causes. That is not from increased caloric intake. That 
could have been, for example, from a food additive, maybe a cause that 
was not known to the public of some kind of additive in something that 
they had eaten or drank. It may have been something that interfered 
with one of their medications and led to fluid retention. I am just 
making up hypotheticals here. Or, the hypothetical, perhaps you have 
something that is actually a heart poison from some food additive that 
has no calories in it, zero calories in it, but over a period of time 
does bad things to the ability of your heart to function. The pump does 
not work so well, you start having fluid retention. What happens? You 
put on weight. As a family doctor, one of the reasons when you go in, I 
would weigh people, as you want to see what is going on with their 
fluid status. That is weight gain.
  Under this bill, which I believe is so broadly written, it would 
include those kinds of situations. The word ``calorie'' or ``caloric 
intake'' or ``caloric content'' is nowhere in this bill, and I again 
refer my colleagues, it is not in the bill itself, you have to go to 
the code, the term ``food'' means, articles used for food or drink for 
man or other animals, chewing gum, and articles used for components of 
any such article.
  Anything you drink, anything in it, regardless of caloric intake, is 
covered by this bill. Anything that leads to weight gain is covered by 
this bill, even if it has nothing to do with caloric intake. I think 
that is far abroad. I think this is probably one of the reasons why it 
died in the Senate and will die again, but I would encourage people to 
look at these kinds of details if there is intent to move this bill 
forward.
  Mr. SENSENBRENNER. Mr. Chairman, I yield 2 minutes to the gentleman 
from Pennsylvania (Mr. Murphy).
  Mr. MURPHY. Mr. Chairman, I thank the chairman for yielding me this 
time.

[[Page 23085]]

  Mr. Chairman, opponents of this legislation have said we do not need 
this bill. They said, we need a debate on health care, and I am pleased 
to engage in that debate. I am reminded of the book that talks about 
everything I need to know in life I learned in kindergarten. I have 
learned a few things here.
  Lawsuits do not lower obesity rates. Lawsuits do not improve the 
nutrition habits of children. Lawsuits do not reduce the $127 million 
annual medical costs that our Nation incurs on obesity-related 
conditions in children and the increase in obesity rates.
  Mr. Chairman, parents need to teach their children at early ages to 
eat healthy meals and to establish exercise routines for their 
families. School districts need to make sure they have gym classes and 
serve the right kinds of food as an option. Proper diet and exercise 
will help reduce medical complications that are increasingly common in 
children, such as hypertension, diabetes, high cholesterol, and heart 
disease which were once found almost exclusively in adults.
  In my years working as a psychologist and oftentimes consulting with 
courts, I have yet to find a court that can replace a parent. When will 
we learn we cannot litigate compassion, we cannot mandate common sense, 
and we certainly cannot legislate personal responsibility.
  H.R. 554 will do more than restrict lawsuits against food and 
manufacturers for weight-related cases. It forces us to take personal 
responsibility for ourselves and our families and put a priority on 
establishing healthy lifestyles.
  Here are the facts. If you touch a flame, you are going to get 
burned. If you eat a lot and do not exercise, you are going to gain 
weight. We need to take personal responsibility for that.
  The bill before us directly protects individual freedoms of all 
Americans from a tiny minority who try to exploit the legal system for 
personal gain. I strongly support H.R. 554, and I commend the chairman 
for his work.
  Mr. WATT. Mr. Chairman, I yield myself such time as I may consume.
  This is where I think we are. Some of us are frustrated by some of 
the litigation that has taken place in this area. I said it when we 
debated this bill the last time on the floor. I am not a fan of fat 
litigation either, but sometimes we have to be patient enough in a 
legislative body to let the institutions that are supposed to work, 
work. They are working. Most of the lawsuits that have been filed in 
this area have been dismissed. Most of them have been dismissed. That 
is what the courts are for. We do not always get the result we want, 
but the courts are there to make a determination of what results are 
appropriate and not under the laws that exist.
  The State legislatures are responding. Mr. Chairman, there are 26 
pending laws out there in the States. A number of them have different 
components, different nuances. Some of them are retroactive, some of 
them are not. Whatever happened to our belief that the State 
legislatures, the States are a laboratory of good legislation? I 
thought that is what my colleagues who are supporting this bill 
believed in more heartily than anything else they came to Congress to 
talk about. When it is convenient for them, when it is convenient for 
them, there is no more important mantra to them than the mantra of 
States rights. What are we doing to States rights here, in an area that 
throughout history has been the province of the States?
  I do not understand. We cannot be so intent on getting a particular 
result, so results-oriented that we disregard everything that we have 
set up in place to deal with problems of this kind: Our judiciary, our 
State legislatures, our common sense.
  Mr. SCHWARZ of Michigan. Mr. Chairman, I rise today in strong support 
of H.R. 554, the Personal Responsibility in Food Consumption Act.
  As a physician, and just as someone who can read the data, I can tell 
you that we have an epidemic of obesity in this country. Obesity is a 
serious health problem, with very serious consequences.
  The most important step we can take to curb obesity is to impart to 
everyone in this country that obesity can be controlled when we take 
personal responsibility. A healthy and consistent diet, with an 
adequate amount of exercise, will work wonders. That's the simple 
truth.
  We must get away from the notion there is anything remotely 
approaching a quick fix to obesity. Maintaining a healthy lifestyle 
requires a life-long dedication to one's own well-being. A lawsuit will 
not help anyone lose weight. Allowing consumers to sue their local 
restaurant, to sue half the food industry, means that we are telling 
our citizens, ``It's not your fault that you are obese.''
  Mr. Chairman, that's the wrong tack to take. I support this 
legislation because it sends the message to everyone in the United 
States, young and old, that taking control of your weight is your 
responsibility, and taking personal responsibility is the only way that 
weight control can be achieved.
  I commend the gentleman from Florida, Mr. Keller, and Chairman 
Sensenbrenner, for their work on this legislation, and I urge passage 
of the bill.
  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. 554) usurps State jurisdiction over lawsuits related to obesity 
against food manufacturers.
  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 restaurant's 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 
fries, 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 manufacturers of cars that go above 65 miles per hour 
for speeding tickets?
  Congress bears some responsibility for the decline of personal 
responsibility that led to the obesity lawsuits. After all, Congress 
created the welfare state that popularized the notion that people 
should not bear the costs of their mistakes. Thanks to the welfare 
state, too many Americans believe they are entitled to pass the costs 
of their mistakes on to a third party--such as the taxpayers or a 
corporation with ``deep pockets.''
  While I oppose the idea of holding food manufacturers 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 business, 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. 554, 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.

[[Page 23086]]


  Mr. HENSARLING. Mr. Chairman, I rise today in support of H.R. 554, 
the Personal Responsibility in Food Consumption Act.
  You may have heard about the overweight maintenance worker from New 
York, who sued McDonald's, Wendy's, Burger King, and KFC for causing 
his two heart attacks and diabetes. Or the class-action lawsuit against 
McDonald's where the lawyers named children as the defendants.
  These stories may sound funny, but the facts show these types of 
frivolous lawsuits bankrupt businesses, deplete pensions, gouge 
consumers and deprive Americans with real complaints access to their 
day in court.
  American consumers actually pay $1,200 more for goods and services 
every year because of lawsuit abuse. Studies also found that the cost 
of litigation accounts for one-third of the price of an 8-foot aluminum 
ladder, it doubles the price of a football helmet, it adds $500 to the 
sticker price of a new car, and increases the cost of a pacemaker by 
$3,000. We all end up paying a huge price for lawsuit abuse.
  But perhaps the most potentially disastrous effect of frivolous 
lawsuits is the cost of American jobs. American businesses are a 
consistent target of frivolous claims, which bleed the essential 
capital they need to create jobs. And with such a lawsuit happy nation, 
many companies simply choose to pack up shop and move overseas.
  At what point will we say enough is enough? At what point will we 
start supporting personal responsibility and stop supporting personal 
injury lawyers?
  Options on a menu do not lead to obesity, but unhealthy habits do. At 
what point are we going to stop the frivolous lawsuits from personal 
injury trial lawyers that are simply trying to make an easy buck off of 
overweight Americans?
  Mr. Chairman, I urge all my colleagues to pass H.R. 554. Let's take a 
stand for personal responsibility and freedom. Let's stamp out 
frivolous lawsuits. Let's preserve the integrity of our judicial 
system, and let's stop personal injury trial lawyers from ripping off 
American consumers.
  Mr. HONDA. Mr. Chairman, I rise today to express my concern that we 
are again dealing with a notion that there is a crisis in our courts 
with obesity lawsuits. H.R. 554, the so-called ``Personal 
Responsibility in Food Consumption Act'' is a measure that seeks to 
give federal immunity to food manufacturers, sellers, and advertisers 
for obesity-related claims. The reality is there is only one such 
pending suit in the entire country, so I am hard pressed to see why we 
need to take up this measure today, especially since there are so many 
other important issues we need to address.
  I do not think it is the role of the United States Congress to 
intervene in every individual and private issue in America. Our Nation 
is plagued by childhood obesity and heart disease, and we should be 
looking into real solutions to this problem, we should not be focusing 
our efforts on getting rid of one lawsuit currently pending against a 
fast food outlet.
  Furthermore, the language in H.R. 554 is so broad it would cut off 
legitimate claims against the food industry, even where the industry 
acted to deceive the public and even where it violated State or Federal 
law. For instance, those in the food industry who fraudulently or 
deceptively market or sell low-fat products that are not really low-fat 
should be held accountable but this measure would let them off the 
hook. Lawsuits aimed at unscrupulous tactics help to change the 
behavior of the bad actors in the industry we should allow our legal 
system to process these legitimate cases.
  Mr. Chairman, our legal system has multiple procedural safeguards to 
ensure that frivolous litigation is thrown out and that meritorious 
claims are preserved. That is why I oppose H.R. 554.
  Mr. STARK. Mr. Chairman, I rise in opposition to the Personal 
Responsibility in Food Consumption Act because I don't think that any 
industry should have the right to conduct its business without the 
oversight of the judicial system. What the lawyer-bashers don't want 
you to know is that frivolous lawsuits, by definition, get thrown out 
of court. In other words, the much-feared million-dollar settlement for 
someone who eats 12 Big Macs a day is not going to happen.
  That's why there are only a few obesity cases in court right now and 
why the only reason we're considering this bill today is because the 
well-heeled McDonald's Corporation doesn't want to face a legitimate 
lawsuit for false advertising. Many of the pending cases are for false 
advertising, claiming food is low fat when it's really not, and this 
bill is so broadly worded that it would preclude such cases from going 
forward.
  The threat of legitimate lawsuits against fast-food corporations is 
as much a part of creating social change as is the threat of a 
Congressional investigation. I believe that both are equally legitimate 
and democratic. We wouldn't want judges to ban us from holding hearings 
and nor should we ban them from hearing cases
  Even more important than the issue of obesity or Congressional 
meddling in the judicial branch is the fundamental right of every 
American to have their day in court. Even if you eat 12 Big Macs a day, 
you have a right to plead your case before a judge. And the judge has 
the right to throw the case out, but Congress has no business 
preemptively closing the courthouse doors to a particular group of 
Americans.
  Ms. DeLAURO. Mr. Chairman, encouraging personal responsibility is 
something we all support in this institution--particularly with respect 
to rising rates of obesity. With two-thirds of premature deaths in the 
U.S. due to poor nutrition, physical inactivity and tobacco use, 
Americans do need to be more mindful of what they put in their bodies.
  But with only 12 percent of Americans eating a healthy diet and 
diabetes rates having risen 61 percent in the last decade alone, it is 
becoming increasingly clear that Congress is abdicating a 
responsibility of its own--we are failing to fashion policies that 
support Americans' efforts to adopt healthier lifestyles.
  Instead of shielding companies from litigation, we should be giving 
people the information they need to make the informed choices that 
exercise that personal responsibility. Today, Americans are eating out 
more frequently, spending about half of their food dollars at 
restaurants--a figure that has doubled since 1970. And everyone knows 
how much harder it is to eat healthily when they eat out. Little wonder 
children eat almost twice as many calories when they eat at a 
restaurant as they do when they eat at home--studies have shown that 
even trained nutritionists cannot estimate the calorie and fat content 
in a meal they do not prepare themselves.
  We need to be creative. For instance, I will be reintroducing 
legislation shortly, The Meal Education and Labeling Act, that would 
extend the kind of nutrition labeling you find on packaged foods at the 
store to include foods at fast food and other chain restaurants. It 
would require these chain restaurants to list calories, saturated plus 
trans fat and sodium on printed menus and calories on menu boards, 
giving consumers the necessary nutritional information to make healthy 
choices for themselves.
  That is the kind of balanced, innovative approach this body should be 
considering today to address obesity--that would be a real step toward 
helping encourage personal responsibility in food consumption while 
protecting industry and our Mom n' Pop restaurants. Instead, as we have 
seen countless times before, this majority has again chosen to use a 
very important public health issue to pursue a narrow and completely 
unrelated political agenda.
  Mr. Chairman, we should do something about obesity in this country by 
empowering people to make informed decisions for themselves. But this 
bill is not the way to go about it.
  Mr. WATT. Mr. Chairman, I yield back the balance of my time.
  Mr. SENSENBRENNER. Mr. Chairman, I yield back the balance of my time.
  The Acting CHAIRMAN (Mr. Putnam). All time for general debate has 
expired.
  Pursuant to the rule, the committee amendment in the nature of a 
substitute printed in the bill shall be considered as an original bill 
for the purpose of amendment under the 5-minute rule, and shall be 
considered read.
  The text of the committee amendment in the nature of a substitute is 
as follows:

                                H.R. 554

       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 of 2005''.

     SEC. 2. FINDINGS; PURPOSE.

       (a) Findings.--Congress finds that--
       (1) the food and beverage industries are a significant part 
     of our national economy;
       (2) the activities of manufacturers and sellers of foods 
     and beverages substantially affect interstate and foreign 
     commerce;
       (3) a person's weight gain, obesity, or a health condition 
     associated with a person's weight gain or obesity is based on 
     a multitude of factors, including genetic factors and the 
     lifestyle and physical fitness decisions of individuals, such 
     that a person's weight gain, obesity, or a health condition 
     associated with a person's weight gain or obesity cannot be 
     attributed to the consumption of any specific food or 
     beverage; and
       (4) because fostering a culture of acceptance of personal 
     responsibility is one of the most important ways to promote a 
     healthier society,

[[Page 23087]]

     lawsuits seeking to blame individual food and beverage 
     providers for a person's weight gain, obesity, or a health 
     condition associated with a person's weight gain or obesity 
     are not only legally frivolous and economically damaging, but 
     also harmful to a healthy America.
       (b) Purpose.--The purpose of this Act is to allow Congress 
     and regulatory agencies to determine appropriate laws, rules, 
     and regulations to address the problems of weight gain, 
     obesity, and health conditions associated with weight gain or 
     obesity.

     SEC. 3. PRESERVATION OF SEPARATION OF POWERS.

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

     SEC. 4. DEFINITIONS.

       In this Act:
       (1) Engaged in the business.--The term ``engaged in the 
     business'' means a person who manufactures, markets, 
     distributes, advertises, or sells a qualified product in the 
     person's regular course of trade or business.
       (2) Manufacturer.--The term ``manufacturer'' means, with 
     respect to a qualified product, a person who is lawfully 
     engaged in the business of manufacturing the product.
       (3) Person.--The term ``person'' means any individual, 
     corporation, company, association, firm, partnership, 
     society, joint stock company, or any other entity, including 
     any governmental entity.
       (4) Qualified product.--The term ``qualified product'' 
     means a food (as defined in section 201(f) of the Federal 
     Food, Drug, and Cosmetic Act (21 U.S.C. 321(f))).
       (5) Qualified civil liability action.--
       (A) In general.--Subject to subparagraph (B), the term 
     ``qualified civil liability action'' means a civil action 
     brought by any person against a manufacturer, marketer, 
     distributor, advertiser, or seller of a qualified product, or 
     a trade association, for damages, penalties, declaratory 
     judgment, injunctive or declaratory relief, restitution, or 
     other relief arising out of, or related to a person's 
     accumulated acts of consumption of a qualified product and 
     weight gain, obesity, or a health condition that is 
     associated with a person's weight gain or obesity, including 
     an action brought by a person other than the person on whose 
     weight gain, obesity, or health condition the action is 
     based, and any derivative action brought by or on behalf of 
     any person or any representative, spouse, parent, child, or 
     other relative of that person.
       (B) Exception.--A qualified civil liability action shall 
     not include--
       (i) an action based on allegations of breach of express 
     contract or express warranty, provided that the grounds for 
     recovery being alleged in such action are unrelated to a 
     person's weight gain, obesity, or a health condition 
     associated with a person's weight gain or obesity;
       (ii) an action based on allegations that--

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

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

  The Acting CHAIRMAN. No amendment to the committee amendment is in 
order except those printed in House Report 109-249. Each amendment may 
be offered only in the order printed in the report, by a Member 
designated in the report, shall be considered read, shall be debatable 
for the time specified, equally divided and controlled by the proponent 
and an opponent of the amendment, shall not be subject to amendment and 
shall not be subject to a demand for division of the question.
  It is now in order to consider amendment No. 1 printed in House 
Report 109-249.

                              {time}  1115


              Amendment No. 1 Offered by Mr. Sensenbrenner

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

       Amendment No. 1 offered by Mr. Sensenbrenner:
       Page 4, line 8, strike ``(B)''.
       Page 5, line 9, strike ``(B)''.
       Page 5, line 12, insert ``for each defendant and cause of 
     action'' before the dash.
       Page 5, line 13, insert ``and the specific facts alleged to 
     satisfy each element of the cause of action'' before the 
     semicolon.
       Page 5, line 15, strike ``were allegedly violated;'' and 
     insert ``allegedly create the cause of action; and''.
       Page 5, line 16, strike ``the specific facts'' and all that 
     follows through the end of line 19 and insert ``the section 
     4(5)(B) exception being relied upon and the specific facts 
     that allegedly satisfy the requirements of that exception.''.

  The Acting CHAIRMAN. Pursuant to House Resolution 494, the gentleman 
from Wisconsin (Mr. Sensenbrenner) and the gentleman from North 
Carolina (Mr. Watt) each will control 5 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, this manager's amendment makes technical changes to the 
section of the bill that sets forth the information plaintiffs must 
provide in order for a judge to determine whether the lawsuit is banned 
by the bill or allowed to go forward under one of the bill's 
exceptions.
  These minor changes are meant to provide a judge with a clear 
understanding of the type of information the judge is to consider in 
deciding a motion to dismiss under H.R. 554.
  The pleading provision in H.R. 554 is meant to apply to any action 
claiming obesity-related damages, and this amendment makes clear that 
the pleading requirements will apply to all cases seeking obesity-
related damages.
  Also adding the phrase ``for each defendant and cause of action'' 
clarifies that a judge must apply H.R. 554's pleading requirements to 
each specific claim. This prevents a plaintiff from improperly using a 
claim that is not barred by H.R. 554 as a means of pursuing obesity-
related claims that are barred by the bill against the same or other 
defendants. This change would prevent entire industries from being 
ensnared in lawsuits where the relevant facts relate to only one 
company.
  Finally, other technical changes would simply ensure consistency by 
using the same terms in the pleading sections as are used elsewhere in 
the bill.

[[Page 23088]]

  I would ask all of my colleagues to support these common sense, 
technical amendments.
  Mr. Chairman, I reserve the balance of my time.
  Mr. WATT. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, normally when we see a manager's amendment come to the 
floor, it is an improving amendment. Unfortunately this one makes a bad 
bill actually worse than it was originally drawn, and it does so in 
this way. There are already pleading requirements in every State, and 
basically what this amendment does is make those pleading requirements 
higher for the food industry than for anybody else in America. And, in 
essence, where you end up is that lawyers who represent people who are 
claiming to have a cause of action are not only now, under this 
language, called upon to represent their clients and make a reasonable 
effort to determine whether there is a basis for their claim, they have 
to be the jury also. They have to go out and decide, are there enough 
facts here on each and every cause of action against each and every 
defendant to win this case and win it profoundly. They have to allege 
specific facts.
  I mean, that is the kind of stuff that normally gets done at a trial 
if a case even gets that far. Most of these cases are being dismissed 
really. So most of them are not going to get that far anyway.
  But I am not sure what role discovery or any other aspect of our 
legal process is playing anymore if we pass this manager's amendment. 
This is much, much more than a technical amendment. This is a very 
substantive amendment. And, unfortunately, I think it makes a bill that 
is already a very, very bad bill, it makes it a very, very, very bad 
bill. I oppose this amendment.
  Mr. Chairman, I yield back the balance of my time.
  Mr. SENSENBRENNER. Mr. Chairman, I yield back the balance of my time.
  The Acting CHAIRMAN. The question is on the amendment offered by the 
gentleman from Wisconsin (Mr. Sensenbrenner).
  The amendment was agreed to.
  The Acting CHAIRMAN. It is now in order to consider amendment No. 2 
printed in House Report 109-249.


          Amendment No. 2 Offered by Ms. Jackson-Lee of Texas

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

       Amendment No. 2 offered by Ms. Jackson-Lee of Texas:
       Page 6, line 24, insert after ``trade association,'' the 
     following: ``or a civil action brought by a manufacturer or 
     seller of a qualified product, or a trade association, 
     against any person,''.

  The Acting CHAIRMAN. Pursuant to House Resolution 494, the 
gentlewoman from Texas (Ms. Jackson-Lee) and the gentleman from Utah 
(Mr. Cannon) each will control 5 minutes.
  The Chair recognizes the gentlewoman from Texas (Ms. Jackson-Lee).
  Ms. JACKSON-LEE of Texas. Mr. Chairman, I yield myself such time as I 
may consume.
  Mr. Chairman, let me thank my distinguished ranking member of the 
subcommittee, the gentleman from North Carolina (Mr. Watt) both for his 
kindliness and his astuteness.
  Let me thank the chairman of the full committee, the gentleman from 
Wisconsin (Mr. Sensenbrenner), and the ranking member of the full 
committee, the gentleman from Michigan (Mr. Conyers), which gives me a 
chance to catch my breath.
  We were in a Homeland Security hearing which is going on, as many of 
my colleagues know, assessing the circumstances with Hurricane Rita and 
Hurricane Katrina.
  I know the gentleman from Wisconsin (Mr. Sensenbrenner) is well aware 
of great intention in our committee to always work together, and so I 
offer this amendment recognizing that my colleagues will consider this 
as an opportunity to work together.
  One could argue that in the backdrop of Hurricane Wilma now reaching 
a Category 5, that this Congress should be addressing many, many other 
issues, particularly enhanced funding for homeland security, and, of 
course, how we can do things better.
  This legislation that is before us needs to be improved. My amendment 
would prohibit the food industry, which enjoys broad immunity under 
this bill, from initiating lawsuits against any person for damages or 
other relief due to injury or potential injury based on a person's 
consumption of a qualified product, and weight gain, obesity, or any 
health condition that is associated with a person's weight gain or 
obesity.
  In essence, this is an amendment to protect against consumer 
retaliation. My colleagues realize that this particular bill, whether 
or not it rises to the level of a national crisis or even needs fixing, 
really immunes, if you will, the vast fast food industry.
  Now, those of us who have raised children during this timeframe will 
never know until the final tests are in, studies are done 10 and 20 
years from now, as to whether or not the eating of fast food that many 
of us took our young children to for play and excitement, is going to 
be long-lasting in its damage.
  But yet we believe that this industry now needs a blanket protection 
from those who may be negatively impacted, obesity, weight gain or any 
other health problems. Yet there is no similar protection against 
consumers who may desire to petition these grievances.
  It allows the industry to willy-nilly and randomly sue consumers. 
This amendment is necessary to ensure that the public debate on the 
health and nutritious effects of mass-marketed food and products is not 
completely quelched 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, albeit she was denied 
her first amendment rights.
  After years of litigation in my State, transfer of her television 
show to Texas and expenditure of over $1 million, Ms. Winfrey prevailed 
at trial and on appeal. Proponents of this bill assert that the food 
industry will incur significant costs defending frivolous lawsuits.
  They took Ms. Winfrey to court, the trial lawyers, but neglect the 
straggering costs that may be borne by private citizens should they 
dare question the health effects of any qualified food product under 
this bill. Where are the first amendment rights and consumer rights? My 
amendment ensures that what is good for the geese is good for the 
gander. Those advancing healthy diets by discouraging the consumption 
of certain foods, their right, their constitutional right, even though 
I come from a beef State, because of their adverse effects perceived on 
a person's health and weight gain, should not be subjected to 
litigation from the food industry while it stands immunized from any 
accountability under this bill.
  Again, I wish we were on the floor talking about restoring the 
drastic cuts in the budget reconciliation bill that deal with health 
care and deal with housing and deal with the various issues of 
education and special grants to help the least of those, but we are on 
the floor talking about McDonald's and Burger King, certainly friends 
of young parents who, through their professions and other 
responsibilities did a lot of eating at Burger King and McDonald's, but 
it does not in any way give them the privilege of denying consumer 
rights and the rights of consumers not to be retaliated against because 
they have expressed their viewpoint and the rights of the first 
amendment.
  I do not recall any hue and cry in this body during or in the 
aftermath against Ms. Winfrey to ban food liability suits. 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, as I close, stimulating positive change on good sound 
eating habits.
  I ask my colleagues to support this amendment.

[[Page 23089]]

  Mr. Chairman, this amendment would prohibit the food industry--which 
enjoys broad immunity under this bill--from initiating lawsuits against 
any person for damages or other relief due to injury or potential 
injury based on a person's consumption of a qualified product and 
weight gain, obesity, or any health condition that is associated with a 
person's weight gain or obesity.
  This amendment is necessary to insure that the public debate on the 
health and nutritious effects of mass marketed food products is not 
completely squelched by this bill.
  In 1996, Oprah Winfrey was sued under my home State's ``food 
disparagement'' laws by the beef industry for comments she made 
following the first ``Mad cow'' scare this country witnessed. After 
years of litigation, transfer of her television show to Texas, and an 
expenditure of over one million dollars, Ms. Winfrey prevailed at trial 
and on appeal.
  Proponents of this bill assert that the food industry will incur 
significant cost defending ``frivolous'' lawsuits by the trial lawyers, 
but neglect the staggering costs that may be borne by private citizens 
should they dare question the health effects of any ``qualified food 
product'' under this bill.
  My amendment insures that what's good for the geese is good for the 
gander. Those advancing healthy diets by discouraging the consumption 
of certain foods because of their adverse effects on a person's health 
and weight gain should not be subject to litigation from the food 
industry while it stands immunized from any accountability under this 
bill.
  I don't recall any hue and cry in this body during or in the 
aftermath of the lawsuit against Ms. Winfrey to ban food libel laws. 
The system worked. But if we are to end the public's right to a jury 
trial on issues of food safety, we cannot end the public's right to 
freedom of speech by leaving food critic 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. CANNON. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, the amendment was defeated last year on the floor by 
voice vote. It should be defeated again this year. This amendment would 
add to the list of qualified civil liability actions that cannot be 
brought under the bill, civil actions brought by a manufacturer or 
seller of a qualified product or trade association against any person 
for obesity-related claims.
  Whatever the rhetorical purpose the sponsor of this amendment seeks 
to accomplish, it should be defeated because it is badly drafted, and 
in the context of the bill, its application would be nonsensical. The 
bill only operates to prohibit lawsuits brought by people because they 
ate too much and got fat.
  The amendment would add corporations to the list of those who cannot 
sue because they got fat. But whatever the intent of the amendment is, 
the fundamental problem is that corporations cannot gain weight and 
suffer from obesity, which is the term used in the bill. A corporation, 
for example, cannot eat too much and a trade association cannot gain 
weight over the holidays.
  For all of these reasons this amendment should be defeated.
  Mr. Chairman, I yield the balance of my time to the gentleman from 
Texas (Mr. Smith).
  Mr. SMITH of Texas. Mr. Chairman, I oppose this amendment but support 
the underlying bill, H.R. 554, the Personal Responsibility in Food 
Consumption Act.
  It is an important piece of legislation that continues a series of 
tort reform measures considered in Congress this year. We passed this 
bill during the 108th Congress, and we should pass it again today. I am 
an original cosponsor of H.R. 554, which will prevent a few lawyers 
from seeking to destroy another industry that employs millions of 
people and provides a welcome service to individuals who choose to use 
it.
  In general, the bill prohibits weight gain related claims against the 
food industry. It allows such claims only where a person gained weight 
as a result of the food industry breaking a State or Federal law. I 
remember in 2002, when individuals filed a lawsuit against McDonald's 
alleging that the fast food chain had made them overweight and 
unhealthy.
  I remember thinking that people should take responsibility for their 
own eating habits. But it is no longer just one suit against one 
company. Now there are suits against all types of the 900,000 
restaurants in the food industry from small local eateries to giant 
fast food chains.
  We must set a limit as to what litigation is allowed. A nonfrivolous 
claim should proceed, but a suit dictating the food choices of 
Americans should be stopped before it is even filed.
  The reality is that restaurant meals will change according to what 
people prefer to eat. In recent years we have seen fast food chains add 
more healthy choices, like salad and fruit, to their menus, but people 
should have the freedom to eat what they want.

                              {time}  1130

  Mr. Chairman, we should encourage personal responsibility and healthy 
eating in our society, but we should not encourage lawsuits that blame 
others for our own choices and that could bankrupt entire industries. 
Because Americans should have the freedom to eat what they want and 
because we should take responsibility for our own actions, I support 
the passage of the Personal Responsibility in Food Consumption Act.
  Mr. CANNON. Mr. Chairman, how much time remains?
  The Acting CHAIRMAN (Mr. Putnam). The gentleman from Utah has 2 
minutes remaining.
  Mr. CANNON. Mr. Chairman, I yield 1 minute to the gentlewoman from 
Texas (Ms. Jackson-Lee).
  Ms. JACKSON-LEE of Texas. Mr. Chairman, I simply ask the question, in 
this bill consumers are left vulnerable, and I would ask the gentleman 
would he not work with me in this amendment to ensure that they are not 
left vulnerable as we are protecting our fast-food industry?
  Mr. CANNON. Mr. Chairman, will the gentlewoman yield?
  Ms. JACKSON-LEE of Texas. I yield to the gentleman from Utah.
  Mr. CANNON. I am not sure when we would work together on the 
amendment. I suppose perhaps in conference we could work on the issue, 
but I am loath to commit the chairman to that process.
  Ms. JACKSON-LEE of Texas. I thank the gentleman. I just want to 
acknowledge that the bill does not protect consumers, and I ask Members 
to support my amendment.
  Mr. CANNON. Mr. Chairman, I yield back the balance of my time.
  The Acting CHAIRMAN. The question is on the amendment offered by the 
gentlewoman from Texas (Ms. Jackson-Lee).
  The question was taken; and the Acting Chairman announced that the 
noes appeared to have it.
  Ms. JACKSON-LEE of Texas. Mr. Chairman, I demand a recorded vote.
  The Acting CHAIRMAN. Pursuant to clause 6 of rule XVIII, further 
proceedings on the amendment offered by the gentlewoman from Texas (Ms. 
Jackson-Lee) will be postponed.
  The Acting CHAIRMAN. The Committee will rise informally.
  The SPEAKER pro tempore (Mr. Terry) assumed the Chair.

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