[House Report 108-432]
[From the U.S. Government Publishing Office]



108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     108-432
======================================================================

 
            PERSONAL RESPONSIBILITY IN FOOD CONSUMPTION ACT

                                _______
                                

 March 5, 2004.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 339]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred 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, having considered the 
same, reports favorably thereon with amendments and recommends 
that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     3
Background and Need for the Legislation..........................     4
Hearings.........................................................    14
Committee Consideration..........................................    14
Vote of the Committee............................................    15
Committee Oversight Findings.....................................    16
New Budget Authority and Tax Expenditures........................    16
Congressional Budget Office Cost Estimate........................    16
Performance Goals and Objectives.................................    18
Constitutional Authority Statement...............................    18
Section-by-Section Analysis and Discussion.......................    18
Changes in Existing Law Made by the Bill, as Reported............    19
Committee Jurisdiction Letters...................................    20
Markup Transcript................................................    24
Dissenting Views.................................................    55

                             The Amendment

  The amendments are as follows:
  Strike all after the enacting clause and insert the 
following:

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.

    Amend the title 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.

                          Purpose and Summary

    Today, the American food industry, the nation's leading 
private sector employer, is facing a barrage of legal claims 
alleging it should pay monetary damages and be subject to 
equitable remedies based on legal theories holding it liable 
for the over-consumption of its legal products by others. H.R. 
339 would preserve the separation of powers, support the 
principle of personal responsibility, and protect the largest 
employers in the United States from financial ruin in the face 
of frivolous liability claims related to obesity.
    H.R. 339 provides that a ``qualified civil liability 
action'' may not be brought in any Federal or State court, and 
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. A ``qualified civil liability action'' is 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 
arising from a person's consumption of a qualified product and 
a person's resulting weight gain, obesity, or any health 
condition that is associated with a person's weight gain or 
obesity. Such actions include those 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. 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)). The term ``qualified civil liability action'' 
does 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 defined in section 402 of the 
Federal Food, Drug, and Cosmetic Act (21 U.S.C. 342).

                Background and Need for the Legislation

    According to a recent article in Fortune magazine:

        On August 3, 2000, the parody newspaper The Onion ran a 
        joke article under the headline ``Hershey's Ordered to 
        Pay Obese Americans $135 Billion'' . . . Some joke. 
        Last summer New York City attorney Sam Hirsch filed a 
        strikingly similar suit--against McDonald's . . . News 
        of the lawsuit drew hoots of derision. But food 
        industry executives aren't laughing--or shouldn't be. 
        No matter what happens with Hirsch's suit, he has 
        tapped into something very big.\1\
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    \1\ Roger Parloff, ``Is Fat the Next Tobacco?'' Fortune (January 
21, 2003).

    To put this problem in perspective, back in 1985, a Federal 
judge stated that plaintiff's unconventional application of 
tort law in the case would also apply to automobiles, knives, 
axes and even high-calorie food ``for an ensuing heart attack'' 
and that it would be ``nonsensical'' to claim that a product 
can be defective under the law when it has no defect.\2\ In 
1999, a State court judge similarly observed that personal 
injury lawyers ``have envisioned . . . the dawning of a new age 
of litigation during which the gun industry, liquor industry, 
and purveyors of `junk' food would follow the tobacco industry 
in reimbursing government expenditures . . .'' \3\ Only a few 
years later, this tragic ``new age'' of litigation--and an 
assault on principles of personal responsibility--is already 
upon us. According to Michael Jacobson, executive director of 
the Center for Science in the Public Interest, which supports 
such lawsuits, ``It's going to take a whole lot of lawsuits to 
. . . affect the dietary habits of the thousands that suffer 
obesity-related disease.'' \4\
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    \2\ Patterson v. Rohm Gesellschaft, 608 F. Supp. 1206, 1211-12 
(N.D. Tex. 1985).
    \3\ Ganim v. Smith & Wesson Corp., No. X06 CV 990153198S, 1999 
Conn. Super. LEXIS 3330 at *14 (Conn. Super. Ct. Dec. 10, 1999).
    \4\ Marguerite Higgins, ``Advocates Meet to Plan Big Mac Attack on 
Fat; Legal Assault on Fast-food Industry Will Follow Blueprint Used 
Against Tobacco Firms,'' The Washington Times (June 22, 2003) at A1.
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THE FOOD INDUSTRY--THE NATION'S LARGEST EMPLOYER OUTSIDE GOVERNMENT--IS 
  NOW THE TARGET OF COORDINATED LAWSUITS DESIGNED TO REAP BILLIONS OF 
                                DOLLARS

    The food service industry employs some 11.7 million people, 
making it the nation's largest employer outside of 
government.\5\ The vital food industry has recently come under 
attack by waves of lawsuits alleging it should pay monetary 
damages and be subject to equitable remedies based on legal 
theories holding it liable for the misuse or overconsumption of 
its legal products by others.
---------------------------------------------------------------------------
    \5\ See Personal Responsibility in Food Consumption Act: Hearings 
on H.R. 339 Before the Subcomm. on Commercial and Administrative Law of 
the House Committee on the Judiciary, 108th Cong., 1st Sess. 33 (June 
19, 2003) (statement of Christianne Ricchi, the National Restaurant 
Association).
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    From June 20 to 22, 2003, the Public Health Advocacy 
Institute gathered personal injury lawyers from all across the 
country and hosted a conference it says will ``encourage and 
support litigation against the food industry.'' \6\ 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 
the industry to its knees.\7\
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    \6\ Abraham Genauer, ``Conference Highlights Assault on `Big Food,' 
'' The Hill (June 11, 2003) at 36.
    \7\ The affidavit can be found at: http://www.phaionline.org/
conference/affidavit.html.
---------------------------------------------------------------------------
    As one recent report has noted, because the trial bar is an 
industry unto itself just like any other big business, ``[f]or 
Trial Lawyers, Inc., a few early unsuccessful cases represent 
nothing more than new product development costs'' toward one 
successful case in one court before one jury that sets the one 
precedent that opens the food industry to limitless 
liability.\8\ As the views of John Banzhaf, a former personal 
injury attorney who is credited as the mastermind behind recent 
lawsuits against obesity-related restaurants, were described by 
The Washington Post, ``Banzhaf argues that, as was the case 
with tobacco, it takes time for legal theories to coalesce in a 
way that forces major societal change.'' \9\ Regarding such 
lawsuits, personal injury lawyer Richard Daynard, head of 
Northeastern University's Tobacco Products Liability Project, 
said ``I think we'll see a progression similar to what we saw 
with tobacco.'' \10\ Mr. Daynard said this even though he 
himself admits he lost weight because ``I ate a lot less.'' 
\11\ The tobacco industry, facing lawsuits brought by 48 
States, was ultimately forced to settle those cost-prohibitive 
and potentially bankrupting cases for $246 billion.\12\ Lawyers 
demonized the tobacco industry. Now Ralph Nader compares fast 
food companies to terrorists and tells the New York Times that 
the double cheeseburger is ``a weapon of mass destruction.'' 
\13\
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    \8\ The Manhattan Institute, Center for Legal Policy, Trial 
Lawyers, Inc. (2003), available at http://www.triallawyersinc.com, at 
18.
    \9\ Blaine Harden, ``Eatery Joins Battle With `The Bulge': Obesity 
Lawsuits Spur Dessert Protest,'' The Washington Post (September 20, 
2003) at A3.
    \10\ Erin Duggan, ``Tobacco-suit Tactics Now Target Fast Food,'' 
Albany Times Union (April 6, 2003) at A1.
    \11\ Daniel Akst, ``Finding Fault for the Fat,'' The Boston Globe 
(December 7, 2003) (``Doesn't personal choice enter the equation? 
Couldn't we simply have ordered a salad? Daynard himself says he 
doesn't often eat this way; he's usually careful, because he knows 
better. He lost 25 pounds a couple of years back, and when I ask him 
how, he says simply, `I ate a lot less.' '').
    \12\ Walter Olson, ``A Spanking for the Trial Lawyers,'' The Wall 
Street Journal (May 23, 2003) at A10.
    \13\ David Wallis, ``Questions for Ralph Nader,'' The New York 
Times (June 16, 2002).
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    On September 3, 2003, a Federal district judge in New York 
threw out Mr. Hirsch's lawsuit for the second time, this time 
with prejudice. The judge did this because Mr. Hirsch again 
failed to state a claim, despite having been given explicit 
guidance by the court when his first case was dismissed 
regarding what he needed to demonstrate for his case to 
proceed.\14\ However, this will not stop the personal injury 
industry, however, from continuing to pursue such cases. 
Personal injury attorney John Banzhaf \15\ said recently, ``You 
may not like it . . . but we'll find a judge. And then we'll 
find a jury'' \16\ that will find restaurants liable for their 
customers' overeating. The same lawyers have recently added ice 
cream manufacturers to a target list that just keeps 
growing.\17\
---------------------------------------------------------------------------
    \14\ See Pelman v. McDonald's Corp., S.D.N.Y. 02 Civ. 7821 (RWS), 
at 34-35 (September 3, 2003) (``[A]ll of plaintiffs' claims in the 
amended complaint have been dismissed as a matter of law . . . The 
plaintiffs have not only been given a chance to amend their complaint 
in order state a claim, but this Court laid out in some detail the 
elements that a properly pleaded complaint would need to contain. 
Despite this guidance, plaintiffs have failed to allege a cause of 
action for violations of New York's consumer protection laws with 
respect to McDonald's advertisements and other publicity . . . The 
plaintiffs have been warned that they must make specific allegations 
about particular advertisements that could have caused plaintiffs' 
injuries, and to provide detail on the alleged connection between those 
injuries and the consumption of McDonald's foods. They have failed to 
remedy the defects of the initial complaint in the face of those 
warnings. Granting leave to amend would therefore be futile. In light 
of the previous decision and the granting of leave to amend, the 
complaint will be dismissed with prejudice.'').
    \15\ According to the Washington Post, Mr. Banzhaf ``has sued 
Hertz, Spiro Agnew and the Interstate Commerce Commission, filed legal 
complaints against dry cleaners, male-only clubs, the National Park 
Service, Rep. Barney Frank and Mrs. Simpson's Dance Classes, threatened 
Dulles Airport, and delivered a Freedom of Information Act [request] to 
the Office of the President . . . On Banzhaf's Web site, he boasts of 
having been called a `legal terrorist.' He has built a public persona 
on this principle, for decades teaching a legal activism course that 
encourages law students to bring to court social reform lawsuits. His 
favorite saying--`Sue the bastards'--has been linked to him so many 
times, it's downright trite to bring it up. The saying is on his office 
wall, and also on his office wall in Latin. His license plate says SUE 
BAST . . . Banzhaf and his cohorts argue that the concept of `free 
will' is a fallacy . . . But could we sue gun companies? Alcohol 
manufacturers? Banzhaf says it's all fair game; some economic theory 
would suggest such suits would be beneficial to society. They would 
cause the prices of certain products to rise, forcing those who buy 
them to pay for the crime and accidents that inevitably occur. It might 
even be possible to increase the extent to which dog owners are held 
liable for the cost of keeping their dogs, even if they aren't 
negligent, on the principle that there are an inevitable number of dog 
bites yearly.'' Libby Copeland, ``Snack Attack: After Taking on Big 
Tobacco, Social Reformer Jabs at a New Target: Big Fat,'' The 
Washington Post (November 3, 2002) at F1.
    \16\ MSNBC, ``Abrams Report'' (January 23, 2003) (transcript).
    \17\ See Marguerite Higgins, ``Lawyers Scream About Ice Cream,'' 
The Washington Times (July 25, 2003) at A1 (``Trial lawyers . . . sent 
letters to Baskin-Robbins Inc., Ben & Jerry's Homemade Holdings Inc., 
Cold Stone Creamery, the Haagen-Dazs Shoppes Inc., TCBY and Friendly 
Ice Cream Corp., telling the chains to add healthier alternatives and 
put nutritional facts on their store menu boards or face potential 
litigation . . . The letter was signed by George Washington University 
law professor John Banzhaf III, a leader in the obesity-lawsuit 
movement, and Michael F. Jacobson, executive director of the Center for 
Science in the Public Interest. It's the third type of notice Mr. 
Banzhaf has sent in the last month since organizing a conference on 
obesity lawsuits.'').
---------------------------------------------------------------------------
    As one recent report has stated, ``Given that 19% of all 
tort costs go to plaintiffs' attorneys, we can imagine a 
corporation called Trial Lawyers, Inc., which rakes in almost 
$40 billion a year in revenues--50% more than Microsoft or 
Intel and twice those of Coca-Cola.'' \18\ This figure even 
excludes the staggeringly large fees--up to tens of thousands 
of dollars per hour--that trial lawyers received from 
settlements in the tobacco litigation of the late 1990's.\19\ 
Given the vast amounts of money at stake, Trial Lawyer Inc.'s 
litigation war will not stop with lawsuits against big ``fast 
food'' companies. As one commentator has written:
---------------------------------------------------------------------------
    \18\ The Manhattan Institute, Center for Legal Policy, Trial 
Lawyers Inc. (2003), available at http://www.triallawyersinc.com, at 2.
    \19\ See id., at 2, 6 (``Significantly, these estimates exclude the 
tobacco settlements, most contract and securities litigations, and most 
punitive damages . . .'').

        First, one should understand who is at risk, who ``Big 
        Food'' really is. It is not just McDonald's, KFC, 
        Burger King, and Wendy's. In the words of the Barber [a 
        plaintiff in a lawsuit against various restaurants] 
        complaint, it is any food company that distributes, 
        owns, sells, produces and markets ``food products that 
        are high in fat, salt, sugar and cholesterol content.'' 
        It also includes any company whose foods cause 
        customers to become ``obese [or] overweight, [or to 
        develop] diabetes, coronary heart disease, high blood 
        pressure, elevated cholesterol levels, and/or other 
        detrimental and adverse health effects and/or 
        diseases.'' In short, it is every food company in the 
        country. If McDonald's is liable for selling high 
        caloric meals, then so are the local pizzeria and 
        grocery stores.\20\
---------------------------------------------------------------------------
    \20\ C. Spencer, K. Schmid, and J. Zanetti, ``Fast Food in the 
Gunsights--Class Actions as Political Weapons,'' Toxics Law Reporter 
(November 21, 2002) at 1093 (emphasis added).

    Frivolous litigation against the ``fast food'' industry, if 
allowed to proliferate, will lead to lawsuits against the food 
industry generally, since even the portion sizes of foods 
cooked at home have grown substantially in the last two 
decades.\21\ Researchers have concluded that the large portion 
size increases for food consumed at home indicates ``a shift 
that indicates marked changes in eating behavior in general.'' 
\22\
---------------------------------------------------------------------------
    \21\ See Nielsen and Popkin, ``Patterns and Trends in Food Portion 
Sizes, 1977-1998'' JAMA.2003; 289: 450-453 (``Between 1977 and 1996, 
both inside and outside the home, portion size increased for salty 
snacks, desserts, soft drinks, fruit drinks, french fries, hamburgers, 
cheeseburgers, and Mexican food . . . [T]he most surprising result [of 
the study] is the large portion size increases for food consumed at 
home--a shift that indicates marked changes in eating behavior in 
general.'').
    \22\ Id. at 453.
---------------------------------------------------------------------------
    According to Michael Greve at the American Enterprise 
Institute, ``It won't be too long before State attorney 
generals get in on this [lawsuits against the food industry]. 
There's too much money on the table.'' \23\
---------------------------------------------------------------------------
    \23\ Julia Duin, ``Obese People Use Lawsuits to Get Government 
Involved,'' The Washington Times (June 11, 2003) at A5.
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       H.R. 339 IS NARROWLY TAILORED LEGISLATION THAT PRESERVES 
                         STATE AND FEDERAL LAWS

    Lawsuits alleging harm was caused by the food industry's 
violation of State or Federal food labeling laws, including 
laws that prevent misleading and untruthful advertising, could 
still go forward under H.R. 339. Every State has its own 
deceptive trade practices laws, and a violation of any of such 
State laws could allow suits to go forward under the 
legislation. Further, under Federal law,\24\ States remain free 
to require labeling of food sold at restaurants.\25\ 
Consequently, States remain free to pass laws requiring that 
the restaurant industry provide nutritional information to 
customers. If a State passed such a labeling law, a violation 
of such law that caused injury could go forward under H.R. 339. 
H.R. 339 also allows lawsuits to proceed when there is a breach 
of express contract or express warranty,\26\ and when a covered 
product is adulterated as defined by Federal law.\27\ Also, 
H.R. 339 only applies to claims based on ``weight gain'' or 
``obesity.'' Lawsuits can go forward under the bill if, for 
example, someone gets sick from a tainted hamburger. In such a 
case, the claim would not be injury due to weight gain from 
eating too many hamburgers over time, but rather a claim for 
injury due to eating a contaminated hamburger.
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    \24\ See Nutrition Labeling and Education Act, Pub. L. No. 101-535.
    \25\ See 21 U.S.C. Sec. 343(q)(5)(A)(i)-(ii) (``Subparagraphs (1), 
(2), (3), and (4) [of paragraph (q) titled `Nutrition information'] 
shall not apply to food--(i) which is served in restaurants or other 
establishments in which food is served for immediate human consumption 
or which is sold for sale or use in such establishments, (ii) which is 
processed and prepared primarily in a retail establishment, which is 
ready for human consumption, which is of the type described in 
subclause (i), and which is offered for sale to consumers but not for 
immediate human consumption in such establishment and which is not 
offered for sale outside such establishment . . .'').
    \26\ See H.R. 339 as reported, Sec. 4(5)(B). As indicated in 
Section 4(5)(B), a qualified civil liability action shall not include 
an action for breach of express contract or express warranty in 
connection with the purchase of a qualified product. The term ``express 
warranty'' is utilized in the context of its specific meaning in the 
common law of torts. First, the plaintiff must justifiably rely on the 
express warranty. Justifiable reliance is a matter ``about which a 
reasonable person would attach importance in determining a choice of 
action.'' See Prosser & Keeton on Torts, 753 (5th ed. 1984); 
Restatement (Third) of Torts: Products Liability, Sec. 9 (Comment B). 
The statement must also be a highly specific one about the health and 
safety of a product. For example, ``this product warranties that a 
person will lose weight based on consumption of food.'' See Baxter v. 
Ford Motor Co., 12 P.2d 409 (1932) (glass will not fly or shatter under 
the hardest impact). Mere generalizations in advertisements are 
regarded as ``dealer talk'' or puffery and do not constitute a breach 
of express warranty. See Prosser & Keeton at 753-54 and Restatement 
(Third) of Torts, Sec. 9; Smith v. Anheauser-Busch, Inc., 599 A.2d 320 
(R.I. 1991) (stating that no reasonable person could have relied on any 
alleged representation in media advertising that driving while 
intoxicated is safe or acceptable); Jakubowski v. Minn. Mining & Mfg., 
193 A.2d 275, 280 (N.J. Super. Ct. App. Div. 1963) (representation that 
a grinding disk was stronger, sharper, and longer-lived than ever 
before available anywhere was mere puffery and not an express 
warranty). Failure to confine the words ``express warranty'' within the 
meaning of the words under the common law could substantially undermine 
the purpose of the legislation, which is to prevent tort law from being 
engaged in a regulatory function outside the normal confines of tort 
law. See Victor Schwartz, Violation of Express Warranty: A Useful Tort 
that Must Be Kept Within Rational Boundaries, 3 J. of Prod. Liab 147 
(1992).
    \27\ See H.R. 339 as reported, Sec. 4(5)(C).
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            THE PUBLIC OVERWHELMINGLY OPPOSES THE LAWSUITS 
                        H.R. 339 WOULD PROHIBIT

    According to a recent Gallup Poll: ``[n]early 9 in 10 
Americans (89%) oppose holding the fast-food industry legally 
responsible for the diet-related health problems of people who 
eat that kind of food on a regular basis. Just 9% are in favor. 
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.'' 
\28\
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    \28\ Gallup Poll, Analysis, ``Public Balks at Obesity Lawsuits'' 
(July 21, 2003) (available at http://www.gallup.com/poll/releases/
pr030721.asp) (results based on telephone interviews with a randomly 
selected national sample of 1,006 adults, 18 years and older, conducted 
July 7-9, 2003).
---------------------------------------------------------------------------
    The public appears to recognize what has also been clear to 
the Supreme Court, and to one principal Founding Father, James 
Madison. As the Supreme Court has stated, quoting Madison, 
``Some degree of abuse is inseparable from the proper use of 
every thing. . . .'' \29\ Even the Chairman of the American 
Council for Fitness and Nutrition, Susan Finn, has written that 
``Although obesity is a serious health threat to millions of 
Americans, lawsuits and finger pointing are not realistic 
solutions. 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 . . .'' \30\ Even the Los Angeles Times has 
editorialized against such lawsuits, stating ``If kids are 
chowing down to excess on junk food, though, 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 
because of legal jousting? People shouldn't get stuffed, but 
this line of litigation should.'' \31\
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    \29\ New York Times Co. v. Sullivan, 376 U.S. 254, 271 (1964) 
(quoting James Madison).
    \30\ Susan Finn, Chairman of the American Council for Fitness and 
Nutrition, The Washington Times (Letter to the Editor) (October 22, 
2003) at A22.
    \31\ Editorial, ``Fast Food Foolishness,'' The Los Angeles Times 
(July 7, 2003) at B10.
---------------------------------------------------------------------------

                H.R. 339 WOULD BRING THE FOCUS BACK TO 
                        PERSONAL RESPONSIBILITY

    The lobbying organization for personal injury attorneys, 
the Association of Trial Lawyers of America, has published a 
book that advises personal injury attorneys to keep people who 
believe in ``personal responsibility'' off juries. According to 
that book, ``Often, a juror with a high need for personal 
responsibility fixates on the responsibility of the plaintiff . 
. . According to these jurors, the 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 during voir dire 
and exclude them from the jury.'' \32\
---------------------------------------------------------------------------
    \32\ David A. Weiner, ``Utilizing the Personal Responsibility 
Bias,'' in ATLA's Litigating Tort Cases (Roxanne Barton Collin and 
Gregory S. Cusimano, editors-in-chief) (June 2003).
---------------------------------------------------------------------------
    Unfortunately, blame-shifting lawsuits continue to erode 
the traditional American value of personal responsibility by 
fomenting a culture of blame. Our lawsuit culture is even 
eroding parental responsibility. As Dr. Jana Klauer, 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 (kids were) having these McDonald's breakfasts 
every morning? Were they incapable of pouring a bowl of cereal 
and some milk?'' \33\ As Will Rogers once observed, Americans 
are ``letting lawyers instead of their conscience be their 
guide.''
---------------------------------------------------------------------------
    \33\ Erin Duggan, ``Tobacco-suit Tactics Now Target Fast Food,'' 
Albany Times Union (April 6, 2003) at A1.
---------------------------------------------------------------------------
    The current lawsuit culture threatens fundamental 
liberties. As Philip Howard has written:

        Our founding fathers would be shocked. There is no 
        ``right'' to bring claims for whatever you want against 
        someone else. Suing is a use of State power. A lawsuit 
        seeks to use government's compulsory powers to coerce 
        someone else to do something . . . Sticking a legal gun 
        in someone's ribs . . . is not a feature of what our 
        founders intended as individual rights. The point of 
        freedom is almost exactly the opposite: We can live out 
        lives without being cowed by the use of legal 
        power.\34\
---------------------------------------------------------------------------
    \34\ Philip K. Howard, The Collapse of the Common Good (New York: 
2001) at 22-23.

    Juries exercise government power and, just like any other 
exercise of government power, should be subject to reasonable 
checks. No government power should be able to, without any 
limit on its authority, impose unlimited liability for 
unlimited numbers of claims. Even prominent personal injury 
attorneys have scoffed at obesity-related lawsuits against the 
---------------------------------------------------------------------------
food industry. As the Washington Post reported:

        [Y]ou'd be surprised to hear that some of the skeptics 
        are among lawyers who normally file such suits on 
        behalf of plaintiffs. Jack H. Olender, the dean of the 
        D.C. trial lawyers, and Michael Hausfeld, author of 
        many class-action lawsuits against corporations, pooh-
        poohed the McDonald's suit . . . Many in the 
        plaintiff's bar, normally willing to find fault and 
        sue, are asking, ``Where's the beef ?'' . . . Hausfeld, 
        of Cohen, Milstein, Hausfeld & Toll, also isn't shy 
        about filing class-action lawsuits. But of the 
        McDonald's case, he said: ``That was one that took the 
        law beyond the bounds . . .'' \35\
---------------------------------------------------------------------------
    \35\ Hearsay: The Lawyer's Column, The Washington Post (January 27, 
2003) at E10.

    But still, such lawsuits will continue, driven by the 
allure of unlimited damage awards. The following exchange 
between a 60 Minutes correspondent and Caesar Barber, a 
plaintiff in a lawsuit against various restaurants, is 
---------------------------------------------------------------------------
instructive.

          CAESAR BARBER: I'm saying that McDonald's affected my 
        health. Yes, I am saying that.
          RICHARD CARLETON (CBS News, 60 Minutes): So what do 
        you want in return?
          CAESAR BARBER: I want compensation for pain and 
        suffering.
          RICHARD CARLETON: But how much money do you want?
          CAESAR BARBER: I don't know . . . maybe $1 million. 
        That's not a lot of money now.\36\
---------------------------------------------------------------------------
    \36\ ``Food Fight,'' CBS News ``60 Minutes'' (Australia) (September 
15, 2002) (transcript).

    As Philip Howard has written, ``First it was millions that 
took our breath away, then tens of millions, then hundreds of 
millions. Now it's billions. Pretty soon, one lucky victim may 
own the world.'' \37\
---------------------------------------------------------------------------
    \37\ Philip K. Howard, The Collapse of the Common Good (New York: 
2001) at 58.
---------------------------------------------------------------------------
    H.R. 339 will encourage society to focus on the true cause 
of obesity: a lack of exercise. Obesity is caused by a 
combination of too much consumption and too little exercise. 
While the U.S. Surgeon General has stated that 
``[a]pproximately 300,000 deaths a year in this country are 
currently associated with overweight and obesity,''\38\ 
according to the Department of Health and Human Services, 
``physical inactivity contributes to 300,000 preventable deaths 
a year in the United States.''\39\
---------------------------------------------------------------------------
    \38\ U.S. Department of Health and Human Services, ``The Surgeon 
General's Call to Action to Prevent and Decrease Overweight and Obesity 
2001'' at 7.
    \39\ President's Council on Physical Fitness and Sports, ``Fact 
Sheet: Physical Activity and Health,'' available at http://
www.fitness.gov/physical--activity--fact--sheet.html (citing U.S. 
Department of Health and Human Services and other Federal agency data) 
(emphasis added).
---------------------------------------------------------------------------
    In April, 2003, at a scientific conference of the 
Federation of American Societies for Experimental Biology, 
Nutritionist Lisa Sutherland of the University of North 
Carolina at Chapel Hill presented her findings that over the 
past twenty 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 thirty minutes a day dropped from 42% to 
29%. Not surprisingly, teenage obesity over the twenty year 
period increased by 10%, indicating that it is not junk food 
that is making teenagers fat, but rather their lack of 
activity.\40\ Similarly for adults, as manual labor has become 
less prevalent and sedentary jobs has become more prevalent, 
adult obesity has risen.\41\
---------------------------------------------------------------------------
    \40\ L.A. Sutherland, ``Health Trends in US Adolescents Over the 
Past 20 Years,'' Program No. 708.7, Abstract 7714.
    \41\ See Todd G. Buchholz, ``Burger, Fries and Lawyers: The Beef 
Behind Obesity Lawsuits'' (conducted for U.S. Chamber of Commerce and 
U.S. Chamber Institute for Legal Reform) (July 2, 2003) at 11-12 (``In 
1952, a dockworker lifts 50 boxes off of a mini-crane and places it on 
a handtruck, which he pulls to a warehouse. In 2003, a person earning a 
similar income would be sitting in front of a computer, inputting data 
and matching orders with deliveries. What's the key difference? Until 
recently, employers paid employees to exert energy and burn calories. 
In contrast, employers pay workers to stay in their seats.'') (emphasis 
in original).
---------------------------------------------------------------------------
    Exercise appears to be the best response to weight gain. As 
a recent study in the American Journal of Preventive Medicine 
concluded:

        Because of the reasonable assumption that increased 
        caloric intake should lead to obesity and its 
        consequences, dietary restriction has been a standard 
        public health recommendation . . . [However,] it would 
        appear that caloric intake might not be a primary 
        determinant of CVD [cardiovascular disease] outcome. 
        The fact is that those who exercised more and ate more 
        nevertheless had low CVD mortality. Thus, energy 
        expenditure may be the key . . . Therefore, eating less 
        may not necessarily equate with leanness, nor does 
        eating more necessarily translate into obesity . . . 
        Thus, perhaps the greatest practical value of this 
        study is the finding here that a focus on increasing 
        energy expenditure, rather than reducing caloric 
        intake, may offer the most productive behavioral 
        strategy by which to extend healthy life.\42\
---------------------------------------------------------------------------
    \42\ Jing Fang, Judith Wylie-Rosett, Hillel W. Cohen, Robert C. 
Kaplan and Michael H. Alderman, ``Exercise, body mass index, caloric 
intake, and cardiovascular mortality,'' 25 American Journal of 
Preventive Medicine 4: 283-89, 287-88 (November 2003).
---------------------------------------------------------------------------

           H.R. 339 WILL PROTECT THE AUTONOMY AND FUNDING OF 
                             PUBLIC SCHOOLS

    Public schools could offer more physical education classes, 
of course, but according to food litigation and personal injury 
attorney John Banzhaf, school boards that allow vending 
machines in schools will be the next targets of obesity-related 
lawsuits,\43\ which threatens to take money away from schools, 
including physical education programs, and give it to personal 
injury attorneys.
---------------------------------------------------------------------------
    \43\ See ``Banzhaf: School Boards Are Next in Line for Obesity 
Lawsuits'' 1 Obesity Policy Report 6 (May 1, 2003) (``Banzhaf confirmed 
the suspicions (and fears) of many by stating flatly that school boards 
that allow vending machines in schools will be the next targets of 
obesity-related lawsuits.''). See also Deborah Bach, ``Coke Deal Could 
Make Schools Targets of Suits,'' The Seattle Post-Intelligencer (July 
2, 2003) at A1 (``A prominent Washington, D.C., law professor who led 
billion-dollar victories against the tobacco industry warned the 
Seattle School Board yesterday that it might become the target of an 
anti-obesity lawsuit for allowing middle and high schools to peddle 
soda to students . . . The contract allows only Coca-Cola products to 
be sold in school vending machines and nets about $400,000 annually for 
school activities . . . Adam Drewnowski, director of the Center for 
Public Health and Nutrition at the University of Washington, was 
outraged at the suggestion of a lawsuit. `This is just bottom-fishing. 
For the School Board to be making decisions under the threat of a 
lawsuit, I think that's scandalous,' he said.'').
---------------------------------------------------------------------------
    According to one article, ``Brita Butler-Wall, executive 
director of Seattle-based Citizens' Campaign for Commercial-
Free Schools, has been lobbying the school board for more than 
a year to get rid of [its] Coca-Cola contract. Yet, as a parent 
of an eighth-grader in a local public school, she says, `I 
don't want to see our district spending its money hiring more 
lawyers to fight a legal battle.' Adam Drewnowski, director of 
the Center for Public Health Nutrition at the University of 
Washington, says, `If you want to influence the school board, 
you run for a seat on the board. Threatening a lawsuit is 
almost like blackmail. It's just unconscionable.' '' \44\ 
According to the National Association of Secondary School 
Principals, such lawsuits against schools threaten their 
ability to raise funds for vital programs.\45\ Indeed, today 
only one State--Illinois--requires daily physical education 
classes for kindergarten through 12th grade.\46\
---------------------------------------------------------------------------
    \44\ Laura Bradford, ``Fat Foods: Back In Court'' TIME Online, 
Inside Business (August 3, 2003).
    \45\ See Marguerite Higgins, ``Food Fight,'' The Washington Times 
(October 19, 2003) at A7 (``About 70 percent of 832 public schools 
polled in 2001 said they had a partnership with a food or beverage 
company to fund programs, a National Association of Secondary School 
Principals report said. Some principals are worried about losing their 
ability to have food fund-raising programs in schools, said Michael 
Carr, spokesman for the Reston association.'').
    \46\ See Susan Finn, The Washington Times (Letter to the Editor) 
(October 22, 2003) at A22 (``When you consider that only one State--
Illinois--requires daily physical education classes for kindergarten 
through 12th grade and that technological improvements have created an 
increasingly sedentary lifestyle, it's no wonder our nation's weight 
problem is getting worse.'').
---------------------------------------------------------------------------

            H.R. 339 WILL PRESERVE THE SEPARATION OF POWERS

    The drive by overeaters to blame those who serve them food 
and to collect unlimited monetary damages is also an attempt to 
accomplish through litigation that which has not been achieved 
by legislation and the democratic process.
    John Banzhaf, a personal injury attorney described above at 
note 15, is now advising the lawyers involved in the litigation 
against various restaurants. In an interview on 60 Minutes, Mr. 
Banzhaf said:

        If we can win one out of 10 cases, if we can persuade 
        one out of ten juries to hit these people with big 
        verdicts, the way we have with tobacco, we can force 
        them to make important changes and finally somebody 
        will be doing something about the problem of obesity, 
        because, at this point nobody else, not the health 
        educators, not the bureaucrats, not our legislators, 
        are doing a damn thing about it.\47\
---------------------------------------------------------------------------
    \47\ ``Food Fight,'' CBS News ``60 Minutes'' (September 15, 2002) 
(transcript) (emphasis added).

    Mr. Banzhaf has also said, ``if the legislatures won't 
legislate, then the trial lawyers will litigate.'' \48\
---------------------------------------------------------------------------
    \48\ National Public Radio, ``Fast Food on Trial'' (8/8/02).
---------------------------------------------------------------------------
    Various courts have described similar lawsuits against the 
firearms industry for harm caused by the misuse of its products 
by others as attempts to ``regulate . . . through the medium of 
the judiciary'' \49\ and ``improper attempt[s] to have [the] 
court substitute its judgment for that of the legislature, 
something which [the] court is neither inclined nor empowered 
to do.'' \50\ Such lawsuits break down the separation of powers 
of the branches of government.
---------------------------------------------------------------------------
    \49\ Penelas v. Arms Technology Inc. et al., No. 3D00-113, 
dismissal affirmed (Fla. Dist. Ct. App., 3d Dist., Feb. 14, 2001).
    \50\ See Cincinnati v. Beretta U.S.A. Corp., No. A9902369, 1999 WL 
809838 (Ohio Com. Pl. Oct. 7, 1999) at *1.
---------------------------------------------------------------------------
    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 legislatures.\51\ Those filing 
such lawsuits seek to circumvent legislatures and the popular 
will.
---------------------------------------------------------------------------
    \51\ See Gordon v. Texas, 153 F.3d 190, 194 (5th Cir. 1998) (citing 
Koohi v. United States, 976 F.2d 1328, 1332 (9th Cir. 1992) 
(``[B]ecause the framing of injunctive relief may require the courts to 
engage in the type of operational decision-making beyond their 
competence and constitutionally committed to other branches, such suits 
are far more likely to implicate political questions. '').
---------------------------------------------------------------------------

            CONGRESS HAS THE CLEAR CONSTITUTIONAL AUTHORITY 
                           TO ENACT H.R. 339

    The lawsuits against the food industry that H.R. 339 
addresses directly implicate core federalism principles 
articulated by the United States Supreme Court in BMW of North 
America, Inc. v. Gore,\52\ which has made 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 . . .'' \53\ Congress can of course 
exercise its authority under the Commerce Clause to prevent a 
few State courts from bankrupting the food industry, the 
largest non-governmental employer in the Nation.
---------------------------------------------------------------------------
    \52\ 517 U.S. 559 (1996).
    \53\ Id. at 571 (citations and footnotes omitted).
---------------------------------------------------------------------------
    In fast food lawsuits, personal injury attorneys seek to 
obtain through the courts stringent limits on the sale and 
distribution of food beyond the court's jurisdictional 
boundaries. By virtue of the enormous compensatory and punitive 
damages sought, and because of the types of injunctive relief 
requested, these complaints in practical effect would require 
manufacturers of lawfully produced food to curtail or cease all 
lawful commercial trade in that food in the jurisdictions in 
which they reside--almost always outside of the States in which 
these complaints are brought--to avoid potentially limitless 
liability. Insofar as these complaints have the practical 
effect of halting or burdening interstate commerce in food, 
they can be appropriately addressed by Congress.
    The Supreme Court in Healy v. Beer Institute \54\ 
elaborated on these principles concerning the extraterritorial 
effects of State regulations as follows:
---------------------------------------------------------------------------
    \54\ 491 U.S. 324 (1989).

        The critical inquiry is whether the practical effect of 
        the regulation is to control conduct beyond the 
        boundaries of the State. . . . [T]he 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 not 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.\55\
---------------------------------------------------------------------------
    \55\ 491 U.S. at 336-37 (citations omitted).
---------------------------------------------------------------------------

              H.R. 339 INCLUDES APPROPRIATE DISCOVERY AND 
                          PLEADING PROVISIONS

    H.R. 339 includes the very same discovery provisions 
designed to prevent fishing expeditions that are already part 
of our Federal securities laws. These provisions \56\ provide 
that discovery of documents be stayed in actions allowed to 
proceed under the Personal Responsibility in Food Consumption 
Act while the court decides whether the case should be 
dismissed unless the court decides that particular discovery is 
necessary to preserve evidence or to prevent undue prejudice to 
a party. Such provisions also provide for court sanctions if a 
defendant destroys any documents relevant to the litigation. 
These provisions are the same as those contained in the Federal 
securities fraud laws, namely 15 U.S.C. Sec. 77z-1(b)(1)-(2) 
and 15 U.S.C. Sec. 78u-4(b)(3)(B)-(C). Obesity-related lawsuits 
against the food industry are just as frivolous, if not much 
more frivolous, than the abusive securities fraud lawsuits 
Congress addressed by enacting the same discovery provisions in 
the Federal securities laws.
---------------------------------------------------------------------------
    \56\ See H.R. 339 as reported, Sec. 3(c).
---------------------------------------------------------------------------
    As one legal commentator has described the same provisions 
in the Federal securities laws, the ``two provisions . . . 
should curb the filing of improper motions [to dismiss]. [T]o 
ensure that defendants cannot use the discovery stay as an 
opportunity to allow potential evidence to disappear, the Act 
provides significant protections for plaintiffs . . .'' \57\
---------------------------------------------------------------------------
    \57\ David C. Mahaffey, ``Pleading Standards and Discovery Stays 
Under the Private Securities Litigation Reform Act: An End to Fishing 
Expeditions?'' 10 No. 2 Insights 9, 12 (1996).
---------------------------------------------------------------------------
    The language providing that a party treat documents in 
their control ``as if they were the subject of a continuing 
request for production of documents from an opposing party 
under'' applicable State or Federal rules of procedure is 
explained in the Conference Report accompanying the Federal 
securities legislation. According to the Conference Report, 
those provisions are intended to make it unlawful for a 
defendant to ``willfully to destroy or otherwise alter relevant 
evidence.'' \58\ While the Conference Report states that these 
provisions are not intended to impose ``liability where parties 
inadvertently or unintentionally destroy what turns out to be 
relevant documents,'' \59\ the risk of sanctions should lead 
defendants to take pains to prevent the loss of evidence. The 
sanctions provision also will discourage defendants from filing 
frivolous motions to dismiss merely for the purpose of 
obtaining a discovery stay.
---------------------------------------------------------------------------
    \58\ H.R. Rep. No. 369, 104th Cong., 1st Sess. 37 (1995).
    \59\ Id. at 37.
---------------------------------------------------------------------------
    H.R. 339 also appropriately requires that any complaint 
alleging that a lawsuit should go forward under the exception 
in the bill that allows cases to proceed when the violation of 
a State or Federal law was the proximate cause of harm must 
state the State and Federal laws that were allegedly violated, 
and the facts that are alleged to have proximately caused the 
injuries claimed.\60\ This provision simply saves the time and 
money of all litigants, as it provides the court with crucial 
information early in the proceedings with which to determine 
whether the case can go forward at all. This provision costs 
neither party to such lawsuit anything because it requires 
statements of the same allegations that would have to be made 
in the case if the litigation is to be successful. It simply 
provides that such necessary information be provided to the 
court sooner rather than later, thus facilitating the court's 
decision as to whether the case may proceed. That saves the 
court's resources, as well as those of all the litigants.
---------------------------------------------------------------------------
    \60\ See H.R. 339, Sec. 3(d).
---------------------------------------------------------------------------

                                Hearings

    The Committee's Subcommittee on Commercial and 
Administrative Law held a hearing on H.R. 339 on June 19, 2003. 
Testimony was received from John Banzhaf, Professor, George 
Washington University Law School; Victor Schwartz, Shook, Hardy 
& Bacon; Christianne Ricchi, The National Restaurant 
Association; and Richard Berman, the Center for Consumer 
Freedom, with additional material submitted by individuals and 
organizations.

                        Committee Consideration

    On January 28, 2004, the Committee met in open session and 
ordered favorably reported the bill H.R. 339 with amendments by 
voice vote, a quorum being present.

                         Vote of the Committee

    In compliance with clause 3(b) of Rule XIII of the Rules of 
the House of Representatives, the Committee notes that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 339.
    1. Mr. Keller offered an amendment to H.R. 339 to replace 
all after Sec. 1 of the bill with provisions including 
discovery and pleading requirements, and exceptions allowing 
suits to proceed if State or Federal laws have been violated, 
for breach of express contract and express warranty, and for 
the sale of adulterated products. By a rollcall vote of 18 yeas 
to 9 nays, the amendment was agreed to.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................              X
Mr. Smith.......................................................              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................              X
Mr. Jenkins.....................................................
Mr. Cannon......................................................              X
Mr. Bachus......................................................              X
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Ms. Hart........................................................              X
Mr. Flake.......................................................              X
Mr. Pence.......................................................              X
Mr. Forbes......................................................
Mr. King........................................................              X
Mr. Carter......................................................              X
Mr. Feeney......................................................              X
Mrs. Blackburn..................................................              X
Mr. Conyers.....................................................                              X
Mr. Berman......................................................                              X
Mr. Boucher.....................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Meehan......................................................                              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................
Mr. Weiner......................................................                              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................                              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             18               9
----------------------------------------------------------------------------------------------------------------

    2. Mr. Watt offered a second degree amendment to the Keller 
amendment that would have limited H.R. 339's application to 
Federal courts. By a rollcall vote of 11 yeas to 15 nays, the 
amendment was defeated.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith.......................................................                              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Chabot......................................................                              X
Mr. Jenkins.....................................................
Mr. Cannon......................................................                              X
Mr. Bachus......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Ms. Hart........................................................                              X
Mr. Flake.......................................................                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................
Mr. King........................................................                              X
Mr. Carter......................................................                              X
Mr. Feeney......................................................                              X
Mrs. Blackburn..................................................
Mr. Conyers.....................................................              X
Mr. Berman......................................................              X
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             11              15
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of Rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of Rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of Rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of Rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 339, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, February 10, 2004.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 339, the 
``Personal Responsibility in Food Consumption Act.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Lanette J. 
Walker (for Federal costs), who can be reached at 226-2860, 
Melissa Merrell (for the State and local impact), who can be 
reached at 226-3220, and Paige Piper/Bach (for the private-
sector impact), who can be reached at 226-2940.
            Sincerely,
                                       Douglas Holtz-Eakin.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 339--Personal Responsibility in Food Consumption Act.
    H.R. 339 would require courts to dismiss certain lawsuits 
filed against manufacturers and sellers of any food product as 
well as the trade associations that represent them. 
Specifically, the bill would affect lawsuits seeking damages 
for injury resulting from weight gain, obesity, or any health 
condition associated with obesity as a result of consumption of 
these products. CBO estimates that implementing H.R. 339 would 
not have a significant impact on the Federal budget. Enacting 
the bill would not affect direct spending or revenues.
    H.R. 339 would impose both an intergovernmental and a 
private-sector mandate as defined in the Unfunded Mandates 
Reform Act (UMRA) by prohibiting State, local, and tribal 
governments and the private sector from pursuing certain civil 
lawsuits concerning obesity or related health conditions. The 
bill also would preempt State liability laws and the authority 
of State courts to hear such cases.
    The direct cost of the mandates would be the forgone net 
value of damage awards. According to academic and government 
sources, no such lawsuits have been completed. In addition, 
those sources indicate that although individuals have filed two 
lawsuits claiming that certain food products caused their 
obesity, both cases were dismissed and they expect that it is 
unlikely there will be many new cases filed in the future. 
Consequently, CBO estimates that the direct cost of the 
mandates (in expected value terms) would be negligible and 
would fall well below the annual thresholds established by UMRA 
for intergovernmental mandates ($60 million in 2004, adjusted 
annually for inflation) and private-sector mandates ($120 
million in 2004, adjusted annually for inflation).
    The CBO staff contacts for this estimate are Lanette J. 
Walker (for Federal costs), who can be reached at 226-2860, 
Melissa Merrell (for the State and local impact), who can be 
reached at 226-3220, and Paige Piper/Bach (for the private-
sector impact), who can be reached at 226-2940. The estimate 
was approved by Peter H. Fontaine, Deputy Assistant Director 
for Budget Analysis.

                    Performance Goals and Objectives

    H.R. 339 does not authorize funding. Therefore, clause 
3(c)(4) of Rule XIII of the Rules of the House of 
Representatives is inapplicable.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article I, section 8, of the Constitution.

               Section-by-Section Analysis and Discussion

    This section by section discusses the bill as reported by 
the Committee.
    Sec. 1. Short Title. Section 1 provides that this Act may 
be cited as the ``Personal Responsibility in Food Consumption 
Act.''
    Sec. 2. Purpose. Section 2 provides that 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. Section 3 
provides that a qualified civil liability action may not be 
brought in any Federal or State court, and 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. 
Section 3 also provides that in any action that is allowed to 
proceed under this Act, 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. During the pendency 
of any such stay of discovery, 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. Section 3 
also provides that in any action brought pursuant to a 
violation of State or Federal law, 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. Section 4 sets out the definitions of 
various terms as used in the Act. 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. Sec. 321(f)). 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. Sec. 342)).
    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.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of Rule XIII of the Rules of 
the House of Representatives, the Committee notes that this 
bill does not change existing law.

                     Committee Jurisdiction Letters


                           Markup Transcript



                            BUSINESS MEETING

                      WEDNESDAY, JANUARY 28, 2004

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:04 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    [Intervening business.]
    Chairman Sensenbrenner. Pursuant to notice, I now call up 
the bill H.R. 339, the ``Personal Responsibility in Food 
Consumption Act'' for purposes of markup, and move its 
favorable recommendation to the House. Without objection, the 
bill will be considered as read, and open for amendment at any 
point.
    [The bill, H.R. 339, follows:]
      
      

  


      
      

  


    Chairman Sensenbrenner. Rather than the Chair recognizing 
himself for an opening statement, the Chair defers to the 
gentleman from Florida, Mr. Keller, the author of the bill, for 
5 minutes.
    Mr. Keller. Thank you, Mr. Chairman.
    The food industry is the largest private sector employer in 
the United States, providing 12 million jobs for Americans. 
There is a real and present danger of an uncontrollable 
avalanche of frivolous lawsuits against restaurants, pizza 
parlors, public schools, grocery stores, and companies that 
make ice cream, soft drinks, and cookies. Of course, the 
consequence of these lawsuits against the food industry is that 
consumers would pay a higher price in restaurants and grocery 
stores for food costs. This legislation, in essence, provides 
that a seller or maker of lawful food products shall not be 
subject to civil liability where the claim is premised upon an 
individual's weight gain resulting from the consumption of 
food. This is a narrowly drawn measured piece of legislation. 
It doesn't immunize the food industry. This bill only applies 
to obesity-related claims, that is, to claims based on weight 
gain or obesity. That means that lawsuits can go forward under 
this bill if, for example, someone gets sick from eating a 
tainted hamburger. In such case, the claim would not be injury 
due to weight gain from eating too many hamburgers over time, 
but rather a claim for injury due to eating a contaminated 
hamburger.
    This legislation doesn't preclude lawsuits for false 
advertising, mislabeling of food, adulterated food, or injuries 
from eating tainted food. The gist of the legislation is that 
there should be common sense in the food court, not blaming 
other people in a legal court, whenever there is an excessive 
consumption of food. Most people have enough common sense to 
realize that if they eat an unlimited amount of super-sized 
fries, milkshakes, chocolate sundaes, and cheeseburgers, it can 
possibly lead to obesity. But in a country like the United 
States where freedom of choice is cherished, nobody is forced 
to super-size their fast-food meals or to choose less healthy 
options on the menu. Similarly, nobody is forced to sit in 
front of the TV all day instead of walking or bike riding.
    Richard Simmons, the famous exercise guru, recently said 
that: People who bring these lawsuits against the food industry 
don't need a lawyer, they need a psychiatrist. The American 
public seems to agree. In a recent Gallup poll, 9 out of 10 
Americans oppose holding the fast-food industry legally 
responsible for the diet-related health problems of overweight 
individuals.
    Which brings me to the subject of lawyers and why we are 
here. Some of the same lawyers who went after the tobacco 
industry now have the goal of seeking $117 billion from the 
food industry, which is the amount the Surgeon General 
estimates is the public health-related cost attributable to 
being overweight. Based on a contingency fee of 40 percent, 
these lawyers would stand to recover $47 billion for themselves 
in attorneys fees. Indeed, lawsuits have already been brought 
against McDonald's, Burger King, Wendy's, KFC, and Kraft-
Nabisco, with additional lawsuits now threatened against the 
makers of ice cream.
    The New York lawsuits against McDonald's were brought by a 
400-pound 15-year-old boy and a 272-pound 56-year-old man named 
Cesar Barber. Mr. Barber recently appeared on the CBS 
television show 60 Minutes. He had this to say:
        Barber: I want compensation for pain and suffering.
        60 Minutes: How much money do you want?
        Barber: Maybe $1 million. That's not a lot of money 
        right now.
    Of course, the litigation against the food industry would 
not make a single individual any skinnier. It would, however, 
make the trial attorneys' bank accounts a lot fatter.
    In summary, we need laws such as the Personal 
Responsibility in Food Consumption Act 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 
common sense principles of personal responsibility and freedom 
of choice, and get away from this new culture where people 
always try to play the victim and blame other people for their 
problems. This legislation is a step in the right direction.
    In closing, this narrowly-drawn legislation is modeled 
closely on H.R. 1036, the ``Protection of Lawful Commerce and 
Arms Act,'' which received 285 votes in the House and enjoyed 
broad bipartisan support. I urge my colleagues to also vote yes 
on this legislation.
    Mr. Cannon. Would the gentleman yield?
    Mr. Keller. Yes.
    Mr. Cannon. I would just like to say that we held a hearing 
in our Subcommittee on this issue. The arrogance of the Trial 
Bar is hard to restate here. I think Mr. Bonzhoff at one point 
said: All I need is one judge and one jury in one place, and we 
will make it a law for America.
    I thought that was extraordinary, and I thought the 
Committee should be aware of that. Thank you. And I yield back.
    Mr. Keller. Thank you, Mr. Chairman. And I yield back the 
balance of my time.
    Chairman Sensenbrenner. The gentleman from Michigan, Mr. 
Conyers.
    Mr. Conyers. Thank you, Mr. Chairman.
    I am at loss to understand what brings on some of the 
legislation before the Committee today. I can understand when 
we are rushing to get things through in time thereof an 
appropriation bill or we have got to acknowledge the beginning 
of a fiscal year. But this bill is a curious departure from 
what originally has been the role of the Committee of the 
Judiciary in terms of its responsibilities.
    In this bill, we propose to authorize the dismissal of 
pending actions as a matter of law. Now, this assumes that the 
judges are having some trouble with this legislation or with 
these kinds of cases, or that there is something that is so out 
of whack in the judicial system that it is important that the 
Committee on the Judiciary in the House of Representatives in 
January 2004, that we weigh in on this. And my question is, 
what for?
    And I--the author of the bill, my friend from Florida, may 
or may not be aware of the fact that we are dealing with when 
actions should be dismissed as if there is some problem in the 
courts about this. And since he has held hearings and listened 
to arrogant lawyers, I would like to just ask him, what is it 
about this kind of a case that makes it important that we act 
on this matter today?
    Mr. Keller. Well, thank you. And first of all, your 
statement that it is unprecedented is untrue. H.R. 1036, the 
``Protection of Lawful Arms and Commerce Act,'' has the same 
exact language regarding the dismissal of the actions. And the 
reason is, while the firearms industry has won 100 percent of 
their claims, they spend about $100 million a year in defending 
these frivolous claims.
    Mr. Conyers. Hold on. I want to hear you out. But we 
haven't passed that law, either, my friend.
    Mr. Keller. We passed in the House by 285 votes.
    Mr. Conyers. That proves your point then?
    Mr. Keller. No. The reason----
    Mr. Conyers. What does that establish?
    Mr. Keller. Well, the reason you have a dismissal of the 
actions rather than set a specific date for when this will take 
effect is because that would encourage the filing of hundreds 
of additional cases right before the date of enactment, which 
is what recently happened in Texas and Mississippi when they 
enacted legal reforms.
    Mr. Conyers. Well, what about the--what is it that brought 
you to this point to introduce the bill? I mean, I am just 
trying to talk with you. We haven't talked about this before. 
And I don't mean any discourtesy, but what brought this to your 
attention that we have got to step into this matter that is 
already in the courts?
    Mr. Keller. Well, what brought this to my attention, 
Congressman, is in approximately August of the prior year, you 
had the same attorneys who got together to go after big tobacco 
and the firearms industry gather here in Washington, D.C. with 
Mr. Banzhaf and announce that they were going to sue the food 
industry, and put at risk 12 million jobs based on the food 
industry selling a lawful product. And as far as I could see, 
the only crime that the food industry committed is that they 
were someone who had deep pockets. And I thought this would be 
crippling litigation for them to face in terms of discovery 
costs and so on and so forth even if they were to prevail. And 
in fact, since that time, I have found that suits have been 
filed all across the country. And I didn't think that we should 
pay higher costs as consumers when we go to the grocery stores 
and restaurants for food.
    Chairman Sensenbrenner. The gentleman's time has expired. 
Without objection, all Members may include opening statements 
in the record at this point.
    [The prepared statement of Mr. King follows:]
  Prepared Statement of the Honorable Steve King, a Representative in 
                    Congress From the State of Iowa
    I support H.R. 339, the ``Personal Responsibility in Food 
Consumption Act.'' We must stop junk lawsuits. However, stopping the 
frivolous lawsuits aimed at restaurants is just the beginning. We must 
root out junk lawsuits in all areas of our economy. Frivolous lawsuits 
undermine our economic growth and cause businesses to spend time, money 
and energy defending against junk lawsuits instead of producing 
valuable products and services. Lawyers, not consumers, benefit from 
these unnecessary lawsuits--some lawyers stand to gain millions cooking 
up junk lawsuits; others are paid to defend against them. However, our 
court system is not just for the lawyers; it is there to ensure justice 
and settle the disputes of all Americans. The people who have the most 
to lose from junk lawsuits are the American people who suffer from the 
drag these lawsuits place on our economy, increased insurance rates, 
and the increased litigation costs that companies are forced to pass 
along to consumers and shareholders. This bill today deals with an 
important issue, but I believe we should expand these reforms to cover 
all industries to protect against frivolous litigation.

    Chairman Sensenbrenner. Are there amendments? The gentleman 
from Florida----
    Mr. Conyers. Mr. Chairman, can I gain 2 additional minutes?
    Chairman Sensenbrenner. Without objection, the gentleman 
will be given 2 additional minutes.
    Mr. Conyers. Thank you for your courtesy.
    To my dear friend from Florida. The suit that you bring to 
our attention was dismissed.
    Mr. Keller. Well, I brought several suits to your 
attention. The McDonald's suit was dismissed, and then it was 
refiled and then recently it was dismissed with prejudice after 
McDonald's incurred several hundreds of thousands of dollars in 
attorney's fees, which is precisely the problem here. We don't 
want them and other restaurants who sell lawful products to 
have to incur millions if not hundreds of millions, like the 
firearms industry, for selling lawful food products.
    Mr. Conyers. But are you suggesting this is a practice you 
may choose to turn into law whenever it occurs in the course of 
litigation?
    Mr. Keller. No.
    Mr. Conyers. Well, then why did you pick this one?
    Mr. Keller. Well, I articulated the problem. Just----
    Mr. Conyers. Well, I know what the problem is. But I mean, 
why did this bother you so much?
    Mr. Keller. It bothers me when you have the largest private 
sector employer in the country employing 12 million people 
faced with an avalanche of frivolous lawsuits and incurring 
millions of dollars in fees for selling a lawful product.
    Mr. Conyers. Did you bother to check whether McDonald's 
stock was ever affected by this litigation?
    Mr. Keller. The price of McDonald's stock is irrelevant to 
me.
    Mr. Conyers. Oh. All right.
    I ask unanimous consent to have my statement put in the 
record. And I thank my colleague from Florida.
    [The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress From the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary
    I rise in strong opposition to this legislation which is completely 
unwarranted. Although headlines of obesity lawsuits have been splashed 
across the newpapers as plaguing our legal system, very few if any 
suits are successful. Even those states that have passed ``obesity 
legislation'' have recognized that no such cases have come before the 
state court system. If there are no such lawsuits, there is clearly no 
need for congressional intervention.
    I agree with proponents of the bill that people should maintain 
personal responsibility for their own choices, but this legislation is 
not about that. This legislation is a platform for tort reform that is 
inconsistent with our Constitutional system of federalism and recent 
Supreme Court decisions interpreting the Congressional power to 
legislate under the Commerce Clause. This is an issue that is 
traditionally left to the states and does not require Congressional 
involvement.
    The bill is not limited to cases where someone is suing McDonald's 
because he gained weight--it would extend to those cases where the food 
manufacturer put out false information about the food's fat content, 
nutritional value, or safety. For instance, although the legislation 
cites an exception to the legislation if a manufacturer or seller 
``willing or knowingly'' violates FDA standards, there is no exception 
for instances in which negligence is involved. Clearly if a seller or 
manufacturer could have or should have know their behavior could cause 
harm, they should be held liable.
    Finally, the section of the legislation which authorizes the 
dismissal of pending actions is absolutely against good public policy. 
People who are in court today should have their day in court without 
the Congress kicking their case. Again we should not interfere in the 
judicial system. The courts are constantly monitoring filing and 
handling the suits according. We have a long tradition in this Congress 
of making sure that our bills do not impact pending cases. Why? Because 
retroactivity generally disrupts cases and adds years of additional 
litigation. It is the same thing as changing the rules in the middle of 
the game to benefit one side.
    I urge my colleagues to vote no regarding this legislation. This is 
a matter for the courts and not for the Congress.

    Chairman Sensenbrenner. Without objection, so ordered. And, 
again, without objection, all Members' opening statements will 
be included in the record.
    Are there amendments? The gentleman from Florida.
    Mr. Keller. Yes, Mr. Chairman. I have an amendment at the 
desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 339 offered by Mr. Keller. 
Strike section 2 and all that follows, and insert the 
following.
    [The amendment follows:]
      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


    Mr. Keller. Mr. Chairman, I ask unanimous consent that the 
amendment be considered as read.
    Chairman Sensenbrenner. Without objection, so ordered. And 
the gentleman is recognized for 5 minutes.
    Mr. Keller. Just a very brief summary of this amendment. 
The gist of this amendment, Mr. Chairman, is that a seller or 
maker of lawful food products shall not be subject to civil 
liability where the claim is premised on an individual's weight 
gain resulting from the consumption of food.
    I have offered this amendment to my original bill just to 
make this a very narrowly drawn measured piece of legislation 
that doesn't immunize the food industry. Key exceptions of 
suits that are allowed to go forward are mislabeling of food, 
false advertising, breach of contract, adulterated food. So, 
for example, the types of suits that would still go forward 
under this amendment: If something had a label on it that 
didn't indicate that there was peanut in the product, and in 
fact, someone had an allergy to peanuts and there were peanuts 
there, that suit could go forward.
    If they said that a product had 50 calories and it really 
had 500 calories, that suit could still go forward. If you were 
to eat a hamburger that had e-coli or mad cow disease, that 
suit could still go forward. This legislation is just narrowly 
limited to those claims related to obesity or weight gain, and 
I ask my colleagues to vote yes on this amendment.
    Mr. Scott. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, this includes a provision that 
would require the court to dismiss--any court in which a case 
is presently pending, including an appeal, to dismiss the case, 
which would give it retroactive effect. This is part of the bad 
policy that we are presenting in this amendment and in the 
underlying bill. It is bad policy to single out one industry 
for special treatment under tort laws. It was bad policy, in my 
judgment, to single out firearms as for special liability 
protection. It was bad policy to suggest that tobacco or to 
have special treatment for liability, increased liability. And 
now it is bad policy to give special immunity to fast food 
industries for certain cases.
    Our tort laws should not be changed and different for those 
who have the legislative clout to try their cases in Congress 
rather than in a court. Apparently, Mr. Chairman, there is no 
problem. All of the cases which have been filed apparently have 
been dismissed, and so the courts are doing apparently a good 
job. We don't need to substitute ourselves as the trial court. 
The courts are doing okay. So there is no compelling reason to 
take a special extraordinary action. Furthermore, Mr. Chairman, 
the contingent fee system by which most of the cases are 
brought would mean that if you bring a frivolous case you get 
zero fee. That would certainly discourage lawyers from taking 
the case. And if the lawyer files a frivolous case, rule 11 
would be the appropriate response from the court.
    Again, Mr. Chairman, it just seems to me that trying to 
using--providing special treatment for special legislatively 
powerful groups is an inappropriate way for a system of justice 
that is supposed to be equal under the law. And I would hope 
that we would oppose the substitute and oppose the underlying 
bill. And I yield back.
    Ms. Hart. Mr. Chairman.
    Chairman Sensenbrenner. The gentlewoman from Pennsylvania, 
Ms. Hart.
    Ms. Hart. Move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Hart. I yield to Mr. Keller.
    Mr. Keller. Thank you, Congresswoman.
    I just want to narrowly reply to the issue raised that this 
applies to pending suits, as if that were unique and that it is 
applying retroactively. The same exact language appeared in 
H.R. 1036, the ``Protection of Lawful Commerce and Arms Act.'' 
There is a good common-sense reason for having this language. 
And that is, if the amendment that Mr. Scott is talking about 
passed, all that would happen is that hundreds of additional 
cases would be filed right before the date of enactment. We 
know that because that is what happened recently in Texas and 
Mississippi regarding their recently enacted legal reforms.
    Regarding the issue of retroactivity, the Supreme Court has 
held that the Congress can impose rules that apply 
retroactively if it does so pursuant to an economic policy. The 
Court said that the strong deference accorded legislation in 
the field of national economic policy is no less applicable 
when the legislation is applied retroactively. And a bill that 
aims to save the national food industry from bankruptcy due to 
pending lawsuits is certainly an enactment pursuant to national 
economic policy, and other Supreme Court cases have also upheld 
retroactive liability provisions such as in the case of the 
Pension Benefit Guaranty Corp. v. R.A. Gray. So I urge my 
colleagues to vote no on Mr. Scott's amendment.
    Mr. Scott. Would the gentlelady from Pennsylvania yield?
    Ms. Hart. I am just going to give my time back to the 
Chairman.
    Mr. Watt. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Watt.
    Mr. Watt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. And I will yield to Mr. Scott.
    Mr. Scott. Thank you.
    I would just like to respond very briefly to the gentleman 
from Florida. I will acknowledge that this policy is legal, I 
will acknowledge that we have done it before. I would also 
knowledge that I think it was bad policy when we did it in the 
gun bill; that although it was legal, it is bad policy--it was 
bad policy then and it is bad policy now to try to have cases 
tried in the Legislative Branch rather than in the court. I 
yield back.
    Mr. Watt. Mr. Chairman, let me just make a couple comments 
about the amendment in the nature of a substitute. In some 
ways----
    Chairman Sensenbrenner. Just is a matter of clarification. 
It is a simple amendment, not in the nature of a substitute.
    Mr. Watt. Well, okay, whatever. It wipes out the whole bill 
and institutes a new bill. From my perspective, that is pretty 
much an amendment in the nature of a substitute.
    But if--in some ways I agree with Mr. Keller that the 
amendment improves the bill, although certainly not enough to 
justify my being willing to support and vote for it. In other 
ways, the amendment actually makes the bill worse by making the 
retro activity a lot more expansive and unfair, and by 
increasing the pleading requirements. And so I think, on 
balance, while Mr. Keller has tried to deal with some of the 
concerns that have been raised about the bill, the primary 
purpose of his amendment is to increase its application to 
pending cases to have the effect of wiping all of them out as 
opposed to some of them out, and to take more and more 
discretion away from judges who apparently he thinks aren't 
capable of exercising their discretion in an appropriate manner 
in the courts, either in Federal or State courts. So I would 
encourage a vote against Mr. Keller's amendment. And I will 
yield back the balance of my time--I will yield to Mr. Scott 
briefly.
    Mr. Scott. Thank you.
    Mr. Chairman, I have been reminded that in the bill we just 
passed, H.R. 1073, the original version had this retro active 
thing in it; however, that retroactivity was taken out, which 
again makes the point that those who have the legislative clout 
to jury rig the judicial system to help them are coming to 
Congress and exercising that legislative clout that ought to be 
exercised in the court where the court can fairly hear the 
evidence and not have the case fixed with legislative 
contributions and however else you get things tried in Congress 
rather than in the court.
    Mr. Watt. I yield back, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Wisconsin, Mr. 
Green.
    Mr. Green. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Green. I yield my time to Mr. Keller.
    Mr. Keller. Just to briefly address again, I don't want to 
belabor it. Mr. Scott is now raising separation of powers 
claims and now legislative contributions.
    Let me take legislative contributions first here just in 
the interest of straight talk. Probably the biggest beneficiary 
you could argue under this bill would be the McDonald's 
Corporation, and probably the biggest opponents would be the 
Trial Lawyers of America. Last legislative cycle, the Trial 
Lawyers out-contributed McDonald's 46 to one. So if this is 
about money, I sure as heck picked the wrong side. I can tell 
you it is about common sense and personal responsibility.
    Second, on the separation of powers issue, it is up to us 
as a legislative body to make the laws and up to the judges to 
interpret the laws. And that is what I am trying to do. This is 
unchartered territories; we are trying to give the judges 
crystal clear, this is what the law is. It is precisely the 
opposite side that wants to blur the separation of powers. Mr. 
Banzhaf at the hearing, a trial lawyer, said: If the 
legislators won't legislate, then the trial lawyers will 
litigate.
    They are trying to accomplish through these actions the 
making of laws, and that is precisely what we are trying to fix 
and not have in this case.
    So, Mr. Chairman, I will yield back.
    Mr. Green. I yield back my time.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Florida, Mr. Keller. Those in 
favor will say aye. Opposed no.
    Chairman Sensenbrenner. The no's appear to have it.
    Mr. Keller. Ask for rollcall.
    Chairman Sensenbrenner. rollcall will be ordered. Those in 
favor of the Keller amendment will, as your names are called, 
answer aye. Those opposed no. And the clerk will call the roll.
    The Clerk. Mr. Hyde.
    [no response.]
    The Clerk. Mr. Coble.
    Mr. Coble. Aye.
    The Clerk. Mr. Coble votes aye.
    Mr. Smith.
    Mr. Smith. Aye.
    The Clerk. Mr. Smith votes aye.
    Mr. Goodlatte.
    [no response.]
    The Clerk. Mr. Chabot.
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot votes aye.
    Mr. Jenkins.
    [no response.]
    The Clerk. Mr. Cannon.
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon votes aye.
    Mr. Bachus.
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus votes aye.
    Mr. Hostettler.
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler votes aye.
    Mr. Green.
    Mr. Green. Aye.
    The Clerk. Mr. Green votes aye.
    Mr. Keller.
    Mr. Keller. Aye.
    The Clerk. Mr. Keller votes aye.
    Ms. Hart.
    [no response.]
    The Clerk. Mr. Flake.
    [no response.]
    The Clerk. Mr. Pence. 
    Mr. Pence. Aye.
    The Clerk. Mr. Pence votes aye.
    Mr. Forbes.
    [No response.]
    The Clerk. Mr. King.
    Mr. King. Aye.
    The Clerk. Mr. King votes aye.
    Mr. Carter.
    Mr. Carter. Aye.
    The Clerk. Mr. Carter votes aye.
    Mr. Feeney.
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney votes aye.
    Mrs. Blackburn.
    Mrs. Blackburn. Aye.
    The Clerk. Mrs. Blackburn votes aye.
    Mr. Conyers.
    Mr. Conyers. No.
    The Clerk. Mr. Conyers votes no.
    Mr. Berman.
    Mr. Berman. No.
    The Clerk. Mr. Berman votes no.
    Mr. Boucher.
    [no response.]
    The Clerk. Mr. Nadler.
    Mr. Nadler. No.
    The Clerk. Mr. Nadler votes no.
    Mr. Scott.
    Mr. Scott. No.
    The Clerk. Mr. Scott votes no.
    Mr. Watt.
    Mr. Watt. No.
    The Clerk. Mr. Watt votes no.
    Ms. Lofgren.
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren votes no.
    Ms. Jackson Lee.
    [no response.]
    The Clerk. Ms. Waters.
    [no response.]
    The Clerk. Mr. Meehan.
    Mr. Meehan. No.
    The Clerk. Mr. Meehan votes no.
    Mr. Delahunt.
    [no response.]
    The Clerk. Mr. Wexler.
    [no response.]
    Ms. Baldwin.
    [no response.]
    The Clerk. Mr. Weiner.
    Mr. Weiner. No.
    The Clerk. Mr. Weiner votes no.
    Mr. Schiff.
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff votes aye.
    Ms. Sanchez.
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez votes no.
    Mr. Chairman.
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman votes aye.
    Chairman Sensenbrenner. Are there Members in the Chamber 
who wish to cast or change their vote? The gentleman from Mr. 
Flake.
    Mr. Flake. Aye.
    The Clerk. Mr. Flake votes aye.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Goodlatte.
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte aye.
    Chairman Sensenbrenner. The gentlewoman from Pennsylvania, 
Ms. Hart.
    Ms. Hart. Aye.
    The Clerk. Ms. Hart aye.
    Chairman Sensenbrenner. Further Members in the Chamber who 
wish to cast or change their votes? If not, the clerk will 
report.
    The Clerk. Mr. Chairman, there are 18 ayes and 9 nos.
    Chairman Sensenbrenner. And the amendment by Mr. Keller is 
agreed to.
    Are there further amendments?
    Mr. Scott. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. I have an amendment at the desk labeled Conyers 
87.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 339 offered by Mr. Scott. Page 
4, lines 12 to 13, strike ``knowingly'' and ``willingly.''
    [The amendment follows:]
      
      

  


    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, this is an amendment that will 
correct a major flaw in the legislation. Currently, the bill 
allows litigation to be brought if the manufacturer or seller 
of a product knowingly or willfully violated FDA standards that 
caused obesity. However, that leaves a loop hole and allows 
protection for those manufacturers and sellers who did not know 
but should have known that their products should cause obesity. 
Specifically, a Florida company sold as, quote, reduced fat ice 
cream when it, in fact, had tripled the calories and more than 
doubled the carbohydrates indicated on the label. The product 
had simply been mislabeled. The product had been on the market 
for years.
    The consumers, however, had brought the correct labeling 
information forward and not the--and it wasn't the due 
diligence of the company. The company was negligent labeling, 
mislabeling their ice cream, and should not be protected in 
that case, a case like that should not be protected by this 
legislation. The amendment should hold people responsible for 
negligent behavior. And so I encourage my colleagues to support 
the amendment. I yield back.
    Chairman Sensenbrenner. Without objection, the amendment 
offered by Mr. Scott will be designated as an amendment offered 
to the Keller amendment which had been adopted earlier.
    The gentleman from Florida, Mr. Keller.
    Mr. Keller. Thank you, Mr. Chairman.
    This amendment by Mr. Scott should be defeated. This bill 
allows cases 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. It is the same standard 
that we have used in other legislation that has received broad 
bipartisan support, the same standard, for example, in H.R. 
1036, the ``Protection of Lawful Commerce and Arms Act,'' which 
received a bipartisan vote of 285 votes in the House. Anyone 
who voted for H.R. 1036 and who votes for this amendment by Mr. 
Scott will be voting for stronger protections for firearms 
manufacturers than for the food industry, which is the largest 
private sector employer providing jobs to some 12 million 
Americans.
    Also, the claim that it is too burdensome to require that a 
person knowingly violate the law before they can fill these 
exceptions doesn't take into account the typical jury 
instructions regarding the so-called mens rea requirement of 
knowing, which says, quote, ``knowledge may be proved by all 
the facts and circumstances surrounding the case and the jury 
may infer knowledge from a combination of suspicion and 
indifference to the truth.'' So this knowing standard is 
certainly flexible enough to produce justice in the courts.
    Finally, the case he mentioned of an ice cream being 
mislabeled, that certainly could go forward under this bill. 
H.R. 339 allows cases to go forward if they involve a breach of 
express contract or breach of express warranty. If you warrant 
something has X calories and it doesn't, it can go forward. If 
you warrant that it has X carbohydrates, it can go forward 
under this exception. So I would urge my colleagues to defeat 
this amendment, and yield back.
    Chairman Sensenbrenner. The question is on the Scott 
amendment. Those in favor will say aye. Opposed no. The nos 
appear to have it. The nos have it. The Scott amendment is not 
agreed to.
    Are there further amendments?
    Mr. Watt. Mr. Chairman, I have an amendment at the desk, 
001.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment to the amendment to H.R. 339 offered 
by Mr. Watt: Page 1, line 9, strike ``or State.'' .
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. Without objection, the caption of 
the amendment is modified to state that it is an amendment to 
the amendment offered by Mr. Keller, earlier adopted. And the 
gentleman from North Carolina is recognized for 5 minutes.
    Mr. Watt. Thank you, Mr. Chairman, and I thank the Chairman 
for his procedural help on this also, because it should have 
been an amendment to Mr. Keller's amendment, and I acknowledge 
that.
    Let me just say a couple of things about this issue. First 
of all, my purpose here is not to defend the kind of ``fat'' 
lawsuits that have been filed or future ``fat'' lawsuits. I 
think they are ridiculous and, in fact, in each case in which 
they have been filed, the courts have determined that they are 
ridiculous, because in each case, they have been dismissed.
    My purpose is, however, to defend the Federal form of 
Government that has served us so well over the years, and it 
seems to me that, once again, people on this Committee who 
profess that they believe in States rights are a lot more 
concerned about the results that the courts are giving in a 
particular case than preserving States rights, because this 
bill and Mr. Keller's amendment to the bill makes the bill 
applicable to both suits that have been filed in the Federal 
courts and suits that have been filed in the State courts.
    Tort law has historically been the province of the State 
courts. These lawsuits have been brought under the tort law 
and, all of a sudden, because of some interest in protecting a 
particular industry or business or contributor or whatever, we 
seem to have lost sight of the fact that our jurisdiction here 
in this Committee and our jurisdiction at the Congress, which 
is a Federal body, is subject to the framework that our 
founders set up for us, which should respect State law. And 
while I have not studied how I would address this issue were I 
a member of a State legislature, North Carolina State 
Legislature, for example, I might well think that this was a 
good idea. But I think it is a terrible idea for us to 
federalize this issue completely and do harm to the whole 
system that we give so much lip service to of respecting the 
rights of States.
    It is one thing to apply this bill to the Federal courts 
and suits that are filed in the Federal courts. To me, it 
strikes me that it is an entirely different thing to apply to 
both Federal and State court actions, and I think we do 
ourselves and this Committee and the Congress a severe 
disservice, and we certainly do the concept of States rights 
and any kind of acknowledgment that we have of States rights a 
disservice by making this bill this broad.
    I encourage my colleagues to oppose the concept of States 
rights for a change and to support this amendment to apply the 
bill only to the Federal courts and not to the State courts.
    I yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Keller.
    Mr. Keller. Thank you, Mr. Chairman. I would urge my 
colleagues to vote ``no'' on Mr. Watt's amendment, just to give 
you 3 reasons.
    First, lawsuits alleging that the harm was caused by the 
food industry's violation of Federal or State food labeling 
laws, including laws that prevent misleading or untruthful 
advertising, can still go forward under H.R. 339 because we 
have made it so much more narrow. In fact, every State has its 
own deceptive trade practice laws, and a violation of any such 
State laws could still go forward under H.R. 339.
    Second, under Federal law, States remain free to require 
labeling of foods sold at restaurants. Consequently, States 
remain free to pass laws that require the restaurant industry, 
for example, to provide nutritional information to customers, 
and if a State passed such a law and there was a violation of 
such a law, that suit could still go forward under this bill.
    Finally, the Commerce Clause certainly gives us authority 
to prevent a few States from bankrupting the entire food 
industry, which is the largest nongovernmental employer in the 
country. In fact, the Supreme Court has said that the Commerce 
Clause protects against inconsistent laws arising from the 
projection of one State's regulatory scheme into the 
jurisdiction of another State.
    So I would urge my colleagues to vote ``no'' on this, and I 
yield back.
    Chairman Sensenbrenner. The question is on the Watt 
amendment. The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman from Virginia (Mr. 
Scott) is recognized for 5 minutes.
    Mr. Scott. Mr. Chairman, again, this is a bad policy to 
single out one industry. I yield the balance of my time to the 
gentleman from North Carolina.
    Mr. Watt. Mr. Speaker, let me just--I thank the gentleman 
for yielding, and let me take a couple of minutes to just 
respond to Mr. Keller's three points, because I think each of 
them illustrates the exact point that I am raising.
    First of all, the last point he made about the commerce 
clause is about the most expansive reading of the commerce 
clause I have ever heard anybody give, and I think if anybody 
should be paying attention to what the commerce--to what the 
Federal Government can and cannot do, should and should not do 
under the ambit of the commerce clause, it ought to be this 
Committee.
    If we read the commerce clause as broadly as Mr. Keller has 
just encouraged us to read it, there really would not be any 
more State jurisdiction, because just about everything moves in 
food--every kind of product moves in interstate commerce in 
some way, and that never has been the criteria on which the 
Federal courts or the State courts have determined the 
applicability of the commerce clause.
    Second, this argument about unfair and deceptive trade 
practices proves exactly the point that I am making. It is the 
tort laws that I am concerned about that have historically been 
about the province of State jurisdiction. Unfair and deceptive 
trade practices really is more of a contract or a consumer 
theory as opposed to a tort theory. So the notion that you can 
wipe out all State court jurisdiction under the tort laws just 
because you are preserving the right for somebody to proceed 
under an unfair and deceptive trade practices law just seems 
unreasonable to me.
    I think this is a very, very broad stretch. This is one of 
those times where I long to have somebody on your side, even 
Bob Barr if he were here, to stand up for States rights. I 
mean, give me a break. It is about time that you all quit 
giving lip service to the concept of States rights and start 
voting for it every once in a while.
    With that, I yield back to Mr. Scott.
    Mr. Scott. I yield back, Mr Chairman.
    Chairman Sensenbrenner. The question is on the Watt 
amendment.
    Those in favor will say aye.
    Opposed, no.
    The noes appear to have it.
    Mr. Watt. Mr. Chairman, I ask for a recorded vote.
    Chairman Sensenbrenner. The question is on agreeing to the 
amendment offered by the gentleman from North Carolina, Mr. 
Watt, to the amendment offered by the gentleman from Florida, 
Mr. Keller, which has already been adopted.
    Those in favor of the Watt amendment will, as your names 
are called answer aye.
    Those opposed, no.
    The Clerk will call the roll.
    The Clerk. Mr. Hyde.
    [no response.]
    The Clerk. Mr. Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Mr. Smith.
    Mr. Smith. No.
    The Clerk. Mr. Smith, no.
    Mr. Gallegly.
    [No response.]
    The Clerk. Mr. Goodlatte.
    [No response.]
    The Clerk. Mr. Chabot.
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Mr. Jenkins.
    [No response.]
    The Clerk. Mr. Cannon.
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Mr. Bachus.
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no.
    Mr. Hostettler.
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Mr. Green.
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Mr. Keller.
    Mr. Keller. No.
    The Clerk. Mr. Keller, no.
    Ms. Hart.
    Ms. Hart. No.
    The Clerk. Ms. Hart, no.
    Mr. Flake.
    Mr. Flake. No.
    The Clerk. Mr. Flake, no.
    Mr. Pence.
    Mr. Pence. No.
    The Clerk. Mr. Pence, no.
    Mr. Forbes.
    [No response.]
    The Clerk. Mr. King.
    Mr. King. No.
    The Clerk. Mr. King, no.
    Mr. Carter.
    Mr. Carter. No.
    The Clerk. Mr. Carter votes no.
    Mr. Feeney.
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Mrs. Blackburn.
    [No response.]
    The Clerk. Mr. Conyers.
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye.
    Mr. Berman.
    Mr. Berman. Aye.
    The Clerk. Mr. Berman, aye.
    Mr. Boucher.
    [No response.]
    The Clerk. Mr. Nadler.
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye.
    Mr. Scott.
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye.
    Mr. Watt.
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Ms. Lofgren.
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye.
    Ms. Jackson Lee.
    [No response.]
    The Clerk. Ms. Waters.
    [No response.]
    The Clerk. Mr. Meehan.
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye.
    Mr. Delahunt.
    [No response.]
    The Clerk. Mr. Wexler.
    [No response.]
    The Clerk. Ms. Baldwin.
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin, aye.
    Mr. Weiner.
    Mr. Weiner. Pass.
    The Clerk. Mr. Weiner, pass.
    Mr. Schiff.
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye.
    Ms. Sanchez.
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye.
    Mr. Chairman.
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Do Members in the chamber wish to 
cast or change their vote?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye.
    Chairman Sensenbrenner. Are there further Members who wish 
to cast or change their vote?
    If none, the clerk will report.
    The Clerk. Mr. Chairman, there are 11 ayes and 15 noes.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments?
    Mr. Watt. Mr. Speaker, I have an amendment at the desk, 
002.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment to the Keller amendment to H.R. 339 as 
passed, offered by Mr. Watt: Strike section 3(b).
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. Without objection, the amendment 
will be considered as in order, notwithstanding the previous 
adoption of the Keller amendment, and the gentleman from North 
Carolina is recognized for 5 minutes.
    Mr. Watt. Thank you, Mr. Chairman, and again, I thank the 
Chairman for the procedural help on this amendment.
    This amendment omits that portion of the bill that requires 
the dismissal of all pending actions that fall under the 
prohibition of the bill. Again, this may be an academic 
amendment because, as I understand it, every single lawsuit 
that has been filed under this theory has been dismissed at the 
State level anyway. But that is not an argument, it seems to 
me, for adopting a bad policy, which I think is just unfair to 
litigants who have met the requirements of State or Federal law 
in the jurisdiction in which they filed and, all of a sudden, 
here comes the legislature after they are into the middle of 
the litigation, or even in some cases in the middle of an 
appeal dismissing their lawsuit as if they were the court as 
opposed to the legislative body.
    I really just think that is a very, very bad precedent and 
policy, and I encourage my colleagues to adopt this amendment.
    I yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Keller.
    Mr. Keller. Thank you, Mr. Chairman. I am just going to be 
very brief. This is the exact issue we have discussed earlier 
with Mr. Scott. I would urge my colleagues to vote no.
    The same language that is being objected to also appeared 
in H.R. 1036, the ``Protection of Lawful Commerce and Arms 
Act.'' We do not want to create incentive for a bunch of new 
suits to be filed by having a new date of an enactment, and the 
Supreme Court has held that you can impose rules that apply 
retroactively pursuant to an economic policy, which is what we 
are doing.
    I urge my colleagues to vote no, and I yield back.
    Chairman Sensenbrenner. The question is on the Watt 
amendment.
    Those in favor will say aye.
    Opposed, no.
    The noes appear to have it. The noes have it. The amendment 
is not agreed to.
    Are there further amendments? The gentleman from North 
Carolina, Mr. Watt.
    Mr. Watt. Mr. Chairman, I have an amendment at the desk, 
003.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment to the Keller amendment to H.R. 339.
    Mr. Watt (during the reading). I ask unanimous consent that 
the amendment be considered as read.
    Chairman Sensenbrenner. Without objection. And, without 
objection, it will be drafted to the Keller amendment already 
adopted.
    The gentleman is recognized for 5 minutes.
    Mr. Watt. Thank you, Mr. Chairman.
    This amendment omits that portion of the bill that imposes 
an additional pleading requirement to actions permitted under 
the bill. Pleading requirements are sufficiently governed by 
the Rules of Civil Procedures in both Federal and State courts. 
The bill severely limits the types of actions that may be 
brought, to include only an action of which a manufacturer or 
seller knowingly and willingly violates a specified law and the 
violation was a proximate cause of the injury, and an action 
for breach of expressed contract or warranty, and an action 
regarding the sale of a qualified product that is adulterated.
    Pleading requirements for such actions have long required 
that the plaintiff generally make his or her case. The 
imposition of a particularity requirement on the narrow 
category of actions permitted under the bill is unduly harsh 
and unnecessary.
    So I encourage my colleagues to adopt this amendment. In 
some respects, the amendments that were made by the Keller 
amendment really make these pleading requirements almost 
useless. But for some reason, it is just not bad enough to pass 
a bad bill. Apparently, my colleagues are so angry at lawyers 
in this body--you would never know that a lot of them are 
lawyers also--that they will go to any lengths to make access 
to the courts more difficult.
    I ask my colleagues to support the amendment, and yield 
back the balance of my time.
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Keller.
    Mr. Keller. Thank you, Mr. Chairman.
    The language that the gentleman is complaining of simply 
states that if you say a statute is violated, tell us 
specifically which one and allege the facts that support your 
claim of proximate cause. It is that simple. This provision is 
there because it simply saves the time and money of all 
litigants as it provides the court with crucial information 
early in the proceedings with which to determine whether the 
case can go forward at all. This provision costs neither party 
to such lawsuit anything, because it requires statements of the 
same allegations that would have to be made in the case if the 
litigation is to be successful. It simply provides that such 
necessary information be provided to the court sooner rather 
than later, thus facilitating the court's decision as to 
whether the case may proceed. This saves the court's resources 
as well as all of the litigants.
    I urge my colleagues to vote no on this amendment and yield 
back.
    Chairman Sensenbrenner. The question is on the Watt 
amendment.
    Those in favor will say aye.
    Those opposed, no.
    The noes appear to have it. The noes have it. The amendment 
is not agreed to.
    Are there further amendments?
    If there are no further amendments, the question now occurs 
on the motion to report the bill H.R. 339 favorably, as 
amended. A reporting quorum is present.
    All in favor will say aye.
    Opposed, no.
    The ayes appear to have it.
    Mr. Watt. Mr. Chairman, I ask for a recorded vote.
    Chairman Sensenbrenner. A recorded vote is requested. Those 
in favor of----
    Mr. Watt. Mr. Chairman, I withdraw the request.
    Chairman Sensenbrenner. The ayes have it. The motion to 
report the bill favorably, as amended, is agreed to.
    Without objection, the bill will be reported favorably to 
the House in the form of a single amendment in the nature of a 
substitute incorporating the amendment adopted here today. 
Without objection, the Chairman is authorized to move to go to 
conference.
    Pursuant to House rules, without objection, the staff is 
directed to make any technical and conforming changes, and all 
Members will be given 2 days as provided by the rules in which 
to submit additional dissenting supplemental or minority views.
                            Dissenting Views

    We oppose H.R. 339 for several reasons. First and foremost, 
the bill is drafted so broadly, it would immunize defendants 
for negligent and reckless behavior, including mislabeling of 
food products. We also object to the fact that the legislation 
applies retroactively, and is written for the benefit of a 
single special interest--the fast food industry. Third, we 
believe the legislation constitutes an unwarranted and hastily 
considered affront to our system of federalism. Finally, we 
oppose the bill because there are far preferable ways to 
respond to this issue than by rushing to judgment to pass a 
one-size-fits-all Federal law preempting all 50 states. H.R. 
339 is opposed by several organizations including Consumers 
Union \1\, Public Citizen \2\, Alliance for Justice \3\ and the 
National Conference of State Legislators. For these and the 
reasons set forth herein, we dissent.
---------------------------------------------------------------------------
    \1\ Letter from Sally Greenberg, Senior Product Safety Counsel and 
Mister Phillips, Esther Peterson Fellow, Consumers Union (February 23, 
2004)(on file with the Democratic staff of the House Judiciary 
Committee).
    \2\ Letter from Frank Clemente, Director, and Jackson Williams, 
Legislative Counsel, Public Citizen Congress Watch (February 23, 
2004)(on file with the Democratic staff of the House Judiciary 
Committee).
    \3\ Letter from Nan Aron, President, Alliance for Justice, 
(February 23, 2004) (on file with the Democratic staff of the House 
Judiciary Committee).
---------------------------------------------------------------------------

               BACKGROUND AND DESCRIPTION OF LEGISLATION

    In August 2002, two children brought suit in New York, 
claiming that McDonald's bore legal responsibility for their 
obesity and health problems. The deluge of media reports that 
followed were often critical of the case. In January 2003, 
Judge Robert Sweet dismissed the action, but granted plaintiffs 
the right to replead their negligence claims with greater 
specificity.\4\ When the plaintiffs failed to do so in 
September, 2003, the case was dismissed. H.R. 339 is an 
apparent response to that dismissed case.
---------------------------------------------------------------------------
    \4\  See Pelman v. McDonald's Corp., 237 F.Supp.2d 512, 533 
(S.D.N.Y. 2003) (``As long as a consumer exercises free choice with 
appropriate knowledge, liability for negligence will not attach to a 
manufacturer. It is only when that free choice becomes but a chimera--
for instance, by the masking of information necessary to make the 
choice, such as the knowledge that eating McDonald's with a certain 
frequency would irrefragably cause harm--that manufacturers should be 
held accountable.'')
---------------------------------------------------------------------------
    H.R. 339 prohibits an otherwise harmed ``person'' from 
bringing a ``qualified civil liability action in state or 
Federal court.'' \5\ A qualified civil liability action is 
defined as any action under law or equity brought against a 
food manufacturer, seller or trade association claiming an 
injury from a person's consumption of food resulting in weight 
gain, obesity or other weight-related health condition.\6\ The 
ban would supercede state law in all 50 states.\7\ The ban 
operates retroactively, terminating any and all pending 
litigation at the time of passage.\8\ The bill appears to be 
written in a one-way preemptive manner, so that it supercedes 
any state law which is not more favorable to defendants than 
H.R. 339.
---------------------------------------------------------------------------
    \5\ H.R. 339, 107th Cong. Sec. 4, part 5 (2003).
    \6\ Id. at Sec. 4, part 5.
    \7\ Id. at Sec. 3(a).
    \8\ Id. at Sec. 3(b). While a motion to dismiss is pending, 
discovery is stayed unless doing so would jeopardize evidence or work 
an undue prejudice on a party. During the stay, all evidence must be 
must be preserved as if it were subject to continuing request for 
production. See Sec. 3(c).
---------------------------------------------------------------------------
    H.R. 339 creates three narrow exceptions where a weight-
related action would be permitted: (1) in regards to the sale 
of an adulterated product, (2) in an action for breach of 
express contract or express warranty, and (3) when the 
respondent ``knowingly and willfully'' violates a State or 
Federal law and that violation is the proximate cause of the 
weight-related injury.\9\ If an action is brought under this 
final exception, the plaintiff is further required to plead 
``with particularity'' which law has been violated and the 
facts arising thereto.\10\
---------------------------------------------------------------------------
    \9\ Id. at Sec. 4, part 5.
    \10\ Id. at Sec. 3(d).
---------------------------------------------------------------------------

        I. H.R. 339 WOULD PERMIT NEGLIGENT AND RECKLESS ACTIONS 
                           BY FOOD PRODUCERS

    H.R. 339 is drafted so broadly that it bars lawsuits that 
would hold food producers accountable for their negligent and 
reckless actions--even those that violate state and Federal 
law.\11\ This leaves two critical loopholes in the law--first, 
if a defendant commits simple negligence or recklessness which 
is not otherwise prohibited by statute; and second, if a 
defendant actually violates a Federal or State law (such as a 
labeling requirement), but does not do so intentionally. By 
requiring an intent to violate the law, H.R. 339 holds the food 
industry to a lower standard of conduct than other industries, 
and indeed, to a lower standard of conduct expected of the 
average person.\12\
---------------------------------------------------------------------------
    \11\  While the bill permits legal actions when the defendant has 
violated a State or Federal law, the bill permits permitted lawsuits to 
situations where the law is broken ``knowingly and willfully.'' Sec. 4, 
part 5(A).
    \12\ To mitigate this problem, Representative Scott offered an 
amendment to strike ``knowingly and willingly'' from Section 4, part 
5(A). Had the amendment passed, a suit would still be allowed only when 
a law or regulation was broken, but would include those instances where 
the law was broken because of a food company's negligent or reckless 
behavior. Unfortunately, the amendment was defeated.
---------------------------------------------------------------------------
    It is not difficult at all to conceive of situations where 
a food company permits incorrect ingredient or fat content 
information to appear on its product, thereby contributing to a 
range of dangerous conditions--from obesity, to heart attacks 
or even worse. This is not a mere hypothetical concern, as two 
recent incidents exemplify how these sorts of misconduct by 
food companies would be sanctioned by this bill.
    In 2001, a consumer reporter investigated the calorie and 
fat content of DeConna Ice Cream Company's Big Daddy Reduced 
Fat Ice Cream and found that the ice cream had three times more 
fat and calories than the label claimed.\13\ After the mistake 
became public, two dieters filed a class action suit \14\ under 
Florida's Unfair Trade and Deceptive Practices Act, asserting 
they were misled by the label's promises.\15\ This past 
September, DeConna settled the case.\16\ In addition to being 
prohibited from using misleading labeling, the company agreed 
to periodically verify the accuracy of its labeling 
information.\17\ Rather than receive a financial windfall, the 
plaintiffs were merely reimbursed for the money they had 
expended. Had H.R. 339 been law in 2001, the action would 
likely have been barred under the bill.
---------------------------------------------------------------------------
    \13\ Mitch Lipka, Inside Scoop: Ice Cream Far From Dieter's Dream, 
South Florida Sun-Sentinel, June 17, 2001.
    \14\ Cohen v. DeConnna Ice Cream Co., No. 01-010780, (Fla. Cir. 
Ct., Broward Cty., Dec. 20, 2001) (granting class action status).
    \15\ Fla. Stat. Ann. Sec. 501.200 et. seq. (West 2003).
    \16\ Patrick Danner, Fat Chance; A $1.2 Million Settlement in a 
Class-Action Suit Against Big Daddy Will be Paid Mostly in Ice Cream, 
Food Labeling, The Miami Herald, Sept. 27, 2003.
    \17\ Id.
---------------------------------------------------------------------------
    H.R. 339 would have also prevented possible private 
litigation relating to KFC's recent and much criticized 
advertising campaign. This past fall KFC began advertising its 
fried chicken as part of a healthy diet. Claiming that fried 
chicken contributed to ``eating better'' and helped dieters 
watch their carbohydrate intake, KFC intimated that eating its 
chicken was part of a successful weight loss plan.\18\ While 
the ads did display minuscule disclaimers in fine print, 
viewers were given the distinct impression that eating fried 
chicken could help them lose weight. After harsh criticism by 
the advertising industry, some of whom claimed the ads knocked 
the ``credibility not just of KFC but of the entire marketing 
industry,'' \19\ the ads were pulled. In response to the ads, 
the Center for Science in the Public Interest filed a complaint 
with the Federal Trade Commission seeking an investigation into 
deceptive advertising practices.\20\ Again, had H.R. 339 been 
law, it is unlikely any form of private litigation against KFC 
would have been viable.
---------------------------------------------------------------------------
    \18\ Press Release, Center for Science in the Public Interest, KFC 
Ad Draws Fire From CSPI (Nov. 7, 2003), http://www.cspinet.org/new/
200311073.html.
    \19\ KFC Blunder in ``Health Ads,'' Advertising Age, Nov. 3, 2003, 
at 22 (editorial noting that ``KFC last week introduced an ad campaign 
that is as laughable, and damaging, as any we can imagine or recall, 
and it should be pulled off the air immediately. In the long history of 
absurd, misleading and ludicrous ad claims, the campaign's position of 
KFC's breaded, fried chicken as a pat of a healthy diet merits special 
derision.'').
    \20\ Id. The FTC has not confirmed whether or not it will be 
investigating KFC's advertisements.
---------------------------------------------------------------------------
    Compounding the difficulty in bringing a legal action where 
a food company has harmed consumers by violating a statutory 
requirement, the bill requires that any allegations in this 
regard be pleaded with particularity.\21\ As Representative 
Melvin Watt stated during the markup debate when he 
unsuccessfully sought to delete this heightened pleading 
requirement, ``the imposition of a particularity requirement on 
the narrow category of actions permitted under the bill is 
unduly harsh and unnecessary.'' It would be far preferable if 
the Committee would continue to leave the development of 
pleading requirements with the Judiciary, which is free to 
alter such provisions through the Rules Enabling Act procedure 
promulgated by Congress.\22\
---------------------------------------------------------------------------
    \21\  H.R. 339 Sec. 3(d).
    \22\  The Rules Enabling Act, 28 USC 2072, (1948) allows the 
Supreme Court to prescribe general rules of practice and procedure and 
rules of evidence for cases in the United States district Courts and 
courts of appeals.
---------------------------------------------------------------------------

          II. H.R. 339 IS UNFAIRLY RETROACTIVE AND APPLIES TO 
                    A SINGLE SPECIAL INTEREST GROUP

    We also object to the retroactive and unfair nature of the 
legislation. First we believe, as a matter of equity, it is 
unfair to change the rules of litigation in the middle of the 
game. If an individual or corporation brings a lawsuit based on 
a particular set of laws and principles, it is simply unfair to 
alter those rules and principles after the fact. In addition to 
suffering a harm, the plaintiff may have expended significant 
time and resources in the litigation, and it is inequitable for 
Congress to unilaterally dismiss that claim without providing 
the harmed party with his or her day in court.
    Second, it is inappropriate for the Majority to deny harmed 
parties their rights in the complete absence of any evidence 
that the courts are not processing the cases before them in a 
just and equitable manner. Indeed the evidence we have seen on 
this count is precisely to the contrary.\23\ Similarly, it is 
inadvisable for the Committee to take such an extraordinary 
action without conducting any analysis whatsoever of the number 
or nature of cases currently pending in court.
---------------------------------------------------------------------------
    \23\ See infra Section IV and accompanying footnotes.
---------------------------------------------------------------------------
    Third, retroactive application of changes in the law flies 
not only in the face of fairness, but precedent as well. We 
would note that the following recent liability legislation 
enacted into law were not drafted to apply retroactively: the 
General Aviation Revitalization Act of 1994 \24\ (statute of 
limitations on suits against airline manufacturers); the Bill 
Emerson Good Samaritan Food Donation Act \25\ (limits the 
liability of those who donate food to a charity); the Volunteer 
Protection Act of 1997 \26\ (limits the liability of 
volunteers); Section 161 of the Amtrak Reform and 
Accountability Act of 1997 \27\ (limits punitive damages in 
railroad accidents); the Biomaterials Access Assurance Act of 
1998 \28\ (limits the liability of suppliers of raw materials 
and medical implant components); the Year 2000 Readiness and 
Responsibility Act \29\ (limits the liability of Y2K 
defendants); and Terrorism Risk Insurance Act of 2002 \30\ 
(limits liability in terrorism-related cases). Of particular 
note, when the Committee considered the Volunteer Protection 
Act in the 105th Congress, we voted on a bipartisan basis--22 
to 4--in favor of a Scott amendment limiting the bill's 
limitations to harm which occurred after the bill was passed 
into law.\31\ Ironically, on the very same day H.R. 339 was 
ordered reported, the Committee voted to repeal the Antidumping 
Act of 1916, and in doing so had taken specific care to make 
sure that law would not apply retroactively.\32\
---------------------------------------------------------------------------
    \24\ Pub. L. No. 103-298, 108 Stat. 1552 (1994).
    \25\ Pub. L. No. 104-210, 110 Stat. 3011 (1996).
    \26\ Pub. L. No. 105-19, 111 Stat. 218 (1997).
    \27\ Pub. L. No. 105-34, 111 Stat. 788 (1997).
    \28\ Pub. L. No. 105-230, 112 Stat. 1519 (1998).
    \29\ Pub. L. No. 106-37, 106 Stat. 185 (1999).
    \30\ Pub. L. No. 107-297, 116 Stat. 2322 (2002).
    \31\ H.R. Rep No. 105-11 (1997).
    \32\ Although Rep. Thomas introduced H.R. 3557, an anti-dumping 
repeal bill, in the 107th Congress, H.R. 1073, 108th Cong. (2003), 
ultimately proceeded because it did not contain a retroactive 
provision.
---------------------------------------------------------------------------
    We also believe it is inadvisable for the Committee to be 
picking and choosing between industries in granting special 
legal liability status. Legislation of this nature leads to a 
patchwork system where the ability of consumers to seek relief 
varies depending upon the relative legislative clout of the 
affected industry, hardly a desirable policy outcome. This is 
why, among other reasons, the legislation is opposed by the 
Physicians Committee for Responsible Medicine and the Center 
for Science in the Public Interest, which has written:

        Frivolous lawsuits deserve to be thrown out of court, 
        and frivolous legislation should be thrown out of 
        Congress--and [H.R. 339] is nothing but frivolous. [The 
        proponents] simply want to preemptively take an entire 
        industry off the hook, and make restaurants and food 
        companies a special, protected class--immune from the 
        scrutiny of judges or juries.\33\
---------------------------------------------------------------------------
    \33\ Press Release, Center for Science in the Public Interest, 
Keller Bill Promotes Corporate Irresponsibility (June 19, 2003) 
available at http://www.cspinet.org/new/200306192.html; Press Release, 
Physicians Committee for Responsible Medicine, Health Advocates Condemn 
Proposed bill to Shield Junk Food Industry (June 16, 2003) available at 
http://www.pcrm.org/new/health030616.html.

    When Representative Watt offered an amendment seeking to 
delete the retroactivity provision,\34\ the Majority responded 
by merely pointing to the fact that H.R. 1036, the gun 
liability bill, was retroactive and applied to a single 
industry. However, that effort has merely passed the House, it 
has not as of yet been considered by the Senate, let alone been 
enacted into law. Moreover, the fact that a single powerful 
lobby was able to achieve retroactive applicability on a single 
occasion hardly serves as a justification to abrogate the 
ordinary rules of fairness.
---------------------------------------------------------------------------
    \34\ The Watt Amendment was defeated by a voice vote.
---------------------------------------------------------------------------

                III. H.R. 339 CONSTITUTES AN AFFRONT TO 
                        OUR SYSTEM OF FEDERALISM

    As we have stated on numerous previous occasions, 
principles of federalism dictate that in all but the most 
exceptional cases, tort law should be left to the states. Tort 
law has traditionally been handled by the state legislative and 
court systems under a framework established by our founders. 
Indeed, the Committee has received no evidence that the state 
court legal system is not functioning well and fairly with 
regard to food liability cases. State courts have dismissed 
those matters involving food consumption which were non-
meritorious.\35\ At the same time, Louisiana has enacted a 
statute limiting obesity lawsuits,\36\ while several other 
states--including Wisconsin, Colorado, and Illinois--are 
considering similar laws.\37\ As Representative Watt stated 
during the Judiciary Committee markup, ``. . . it is a terrible 
idea for us to federalize this issue completely and do harm to 
the whole system that we give so much lip service to of 
respecting the rights of States.'' \38\
---------------------------------------------------------------------------
    \35\ See infra Section IV.
    \36\ 2003 La. Act 158 states ``any manufacturer, distributor or 
seller of a food or non-alcoholic beverage intended for human 
consumption shall not be subject to civil liability for personal injury 
or wrongful death where liability is premised upon an individual's 
weight gain, obesity or a health condition related to weight gain or 
obesity and resulting from his long term consumption of a food or non-
alcoholic beverage.'' The effective date of the law is June 2, 2003.
    \37\ See A.B. 595, 96th Leg., Reg. Sess. (Wi. 2003) (referred to 
the Senate Committee of the Judiciary); Common Sense Consumption Act, 
H.B. 1150, 64th Gen. Assem., Reg. Sess. (Co. 2004) (passed the House on 
January 30, 2004, and has been introduced in the Senate and assigned to 
the Judiciary Committee); Limited Liability in Civil Actions for 
Obesity, S.B. 020, 64th Gen. Assem, Reg. Sess. (Co. 2004) (passed the 
Senate 33-2 on January 23, 2004 and has been introduced in the House 
and assigned to the Judiciary Committee); Common Sense Consumption Act, 
H.B. 3891, 93rd Gen. Assem., Reg. Sess., (Ill. 2004) (referred to the 
House Committee on Rules); Common Sense Consumption Act, S.B. 2813, 
93rd Gen. Assem. Sess., (Ill. 2004) (referred to the Senate Committee 
on Rules).
    \38\ Representative Watt offered an amendment to limit the bill's 
applicability to Federal courts. It was defeated by a party line vote 
of 11-15.
---------------------------------------------------------------------------
    It is with good reason the Federal Government has 
traditionally deferred to the states regarding tort law. The 
Conference of State Chief Justices has testified that the 
search for uniformity through Federal liability legislation 
will ultimately prove counterproductive:

        It follows that Federal standards, however well 
        articulated, will be applied in many different contexts 
        and inevitably will be interpreted and implemented 
        differently, not only by the State courts but also by 
        the Federal courts . . . Moreover, State Supreme Courts 
        will no longer be, as they are today, the final 
        arbiters of their tort law . . . a legal ticket is 
        inevitable and the burden of untangling it, if it can 
        be untangled at all, will lie only with the Supreme 
        Court of the United States, a court which many experts 
        feel is not only overburdened but also incapable of 
        maintaining adequate uniformity in existing Federal 
        law.\39\
---------------------------------------------------------------------------
    \39\ Product Liability: Hearing on S. 565, The Product Liability 
Fairness Act of 1995 Before the Senate Comm. on Commerce, Science and 
Transportation, 104th Cong., 6-7 (1995) (statement of Stanley Feldman 
of the Conference of Chief Justices, National Center for State Courts).

    The National Conference on State Legislatures has also 
decried ``one-size-fits-all Federal solution on the States,'' 
and noted in other contexts that federalizing tort law would 
---------------------------------------------------------------------------
lead to greater confusion rather than certainty:

        [m]ore likely than ``predictability'' is the prospect 
        that this massive nationalization of civil law will 
        cause years of uncertainty, unpredictability and an 
        increasing flow [of] litigation to the Supreme Court. 
        It is time to set aside old assumptions about the 
        wisdom of Congress and the Supreme Court dictating 
        domestic policy in the states. Federalism offers 
        accountability, innovation and responsiveness in the 
        formulation of public policy. The era of Federal 
        paternalism is over.\40\
---------------------------------------------------------------------------
    \40\ Preemption of Product Liability: Hearing on H.R. 10 Before the 
House Comm. on the Judiciary, 104th Cong., (1995) (statement of the 
National Conference of State Legislatures).

    In many respects, H.R. 339 is even less justified than the 
other types of liability legislation previously considered by 
this Committee because it is so premature. By acting before 
there is even a single jury verdict, this Committee also 
departs from its long tradition of letting courts decide new 
cases before considering stepping in to alter the law where it 
believes the results are contrary to the public interest. By 
doing this, Congress never receives the benefit of considering 
the various fact patterns, legal issues, and evidence that may 
be presented in the ensuing trials.\41\
---------------------------------------------------------------------------
    \41\ Hearing on H.R. 339, The Personal Responsibility in Food 
Consumption Act of 2003 Before the Subcomm. on Commercial and 
Administrative Law, House Comm. on the Judiciary, 108th Cong., 7 (2003) 
(statement of Professor John H. Banzhaf, III).
---------------------------------------------------------------------------
    Indeed, H.R. 339 is so intrusive that if enacted into law, 
it may well be found inconsistent with recent Supreme Court 
decisions interpreting the Congressional power to legislate 
under the Commerce Clause. Four years ago in United States v. 
Morrison, the Court invalidated portions of the Violence 
Against Women Act, stating that Congress had overstepped its 
specific constitutional power to regulate interstate 
commerce.\42\ Despite vast quantities of data illustrating the 
effects that violence against women has on interstate commerce, 
the Court essentially warned Congress not to extend its 
constitutional authority in order to, ``completely obliterate 
the Constitution's distinction between national and local 
authority.'' The same concerns were brought in United States v. 
Lopez, which invalidated a Federal law criminalizing the 
possession of firearms in a school zone. In that case, the 
Supreme Court cautioned Congress regarding its limited 
authority in matters traditionally left to the states, 
Congress's authority is not as broad.\43\ This would be 
particularly true concerning matters of public health and 
safety of the nature implicated by H.R. 339.
---------------------------------------------------------------------------
    \42\ 529 U.S. 598 (2000).
    \43\ 514 U.S. 549 (1995).
---------------------------------------------------------------------------

IV. THERE ARE FAR PREFERABLE WAYS TO DEAL WITH LEGAL ACTIONS INVOLVING 
                           THE FOOD INDUSTRY

    Although headlines of obesity lawsuits have been splashed 
across the newspapers as plaguing our legal system, the reality 
is very few, if any, suits are successful in court. Instead the 
legal system has ably handled the limited number of matters 
that have come before it.
    While many of these cases have been deemed frivolous, 
others have resulted in positive changes in food industry 
policies. In fact, some of the cases have highlighted 
questionable measures taken by the industry that denied 
consumers information about the contents of certain foods, the 
foods' nutritional value, or the long-term consequence of the 
foods' consumption. Consider the following developments--which 
arguably stem in part from food product related litigation, 
such as the lawsuit brought against Kraft Foods regarding the 
dangerous trans fat found in Oreo Cookies.\44\
---------------------------------------------------------------------------
    \44\ See Oreo Cookies Lawsuit Crumbles, CBSNews.com, (May 15, 2003) 
at http://www.cbsnews.com/stories/2003/05/13/health/main553619.shtml.

         LLast year, the FDA issued requirements that 
        food labels reveal the levels of trans fats. In doing 
        so, the FDA estimated that merely revealing trans fat 
        content on labels will save between 2,000 and 5,600 
        lives a year, as people either would choose healthier 
        foods or manufacturers alter their recipes to leave out 
        the damaging ingredient.\45\
---------------------------------------------------------------------------
    \45\ Lauran Neergaard, FDA to force foods to reveal artery-clogging 
trans fat, Associated Press, July 9, 2003.

         LMcDonald's now offers a ``Go Active Meal'' 
        for adult, containing a healthy salad along with 
        exercise tools.\46\ 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.\47\
---------------------------------------------------------------------------
    \46\ Sherri Day, McDonald's Enlists Trainer to Help Sell Its New 
Meal, NY Times, Sept. 16, 2003 at C4 (describing a new pilot program in 
Indiana).
    \47\ Bruce Horovitz, Pizza Hut to Serve UP Slices of Healthier Pie; 
Altered Fast-Food Favorite Has Less Fat, USA Today, Oct. 15, 2003 at 
B1.

         LMajor food companies, such as McDonald's, 
        Kellogg and PepsiCo have recently promised to change 
        how they produce foods and to take health concerns into 
        greater consideration. For instance, McDonald's and the 
        Frito-Lay division of PepsiCo, plan to eliminate trans 
        fats in their foods. The New York City public school 
        system also banned candy, soda and other sugary snacks 
        from school vending machines to combat obesity among 
        schoolchildren.\48\
---------------------------------------------------------------------------
    \48\ David Barboza, Kraft Plans to Rethink Some Products to Fight 
Obesity, N. Y. Times, July 2, 2003 at C6.

    At the same time, when non-meritorious lawsuits are 
brought, our legal system has multiple procedural safeguards to 
ensure defendants' rights are respected. First, judges monitor 
filings at every step, and are empowered to dismiss a case that 
lacks merit at any time. As mentioned above, last year a 
Federal judge dismissed with prejudice the obesity suit against 
McDonald's when it found the plaintiffs failed to prove any 
connection between their weight and McDonald's food.\49\ This 
meant the defendant was able to avoid the expenses of a 
protracted trial.
---------------------------------------------------------------------------
    \49\ Pelman v. McDonalds Corp., No. 02 Civ. 7821(RWS) (S.D.N.Y. 
Sept. 3, 2003), at 11.
---------------------------------------------------------------------------
    Second, attorneys can be punished and subjected to monetary 
penalties if they bring frivolous cases to court, or otherwise 
abuse the legal process. Federal Rule of Civil Procedure 11--
which has counterparts in all 50 states--allows sanctions 
against litigants and their attorneys when they make bad-faith 
arguments or bring a suit for an improper purpose. 
Specifically, Rule 11 type procedures prohibit bringing a case 
``for any improper purpose, such as to harass or to cause 
unnecessary delay or needless increase in the cost of 
litigation.'' \50\ The rule also requires that every legal 
argument be supported by existing law or a ``nonfrivolous 
argument for the extension, modification, or reversal of 
existing law or the establishment of new law.'' \51\ If a 
defendant feels that either of these requirements has been 
broken, it can simply move for sanctions--and if successful, 
can recover the expenses incurred as a result of the 
violation.\52\
---------------------------------------------------------------------------
    \50\ Fed. R. Civ. P. 11(b)(1).
    \51\ Id. at (b)(2). See also Rule 11(b)(3) which requires that 
``allegations and other factual contentions have evidentiary support.''
    \52\ Id. at (c)(2).
---------------------------------------------------------------------------
    Finally, the contingency fee system operates to prevent 
attorneys from taking baseless cases. Under this system, an 
attorney only gets paid if he or she wins, so there is little 
incentive to pursue cases that do not meet legal and 
evidentiary requirements. If plaintiffs continue to lose 
obesity cases, we would expect the attorney would hesitate to 
bring such actions in the future.

                               CONCLUSION

    H.R. 339 is ill-conceived legislation. It is drafted so 
broadly it would insulate negligent and reckless activity, and 
would upset cases in the mid-stream of litigation. It has been 
drafted in the absence of a single verdict against the food 
industry, and would preempt the laws in all 50 states.
    The common law system of tort law implemented by our States 
has served our citizens well for more than 200 years, and is 
more than able to handle those frivolous cases which do arise. 
We should not pass special interest legislation that panders to 
a single industry at the expense of our system of federalism.

                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Martin T. Meehan.
                                   William D. Delahunt.
                                   Robert Wexler.
                                   Tammy Baldwin.
                                   Anthony D. Weiner.
                                   Adam B. Schiff.
                                   Linda T. Sanchez.

                                
