[House Report 109-130]
[From the U.S. Government Publishing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    109-130

======================================================================



 
        PERSONAL RESPONSIBILITY IN FOOD CONSUMPTION ACT OF 2005

                                _______
                                

 June 14, 2005.--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

                    ADDITIONAL AND DISSENTING VIEWS

                        [To accompany H.R. 554]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 554) to prevent legislative and regulatory functions from 
being usurped by civil liability actions brought or continued 
against food manufacturers, marketers, distributors, 
advertisers, sellers, and trade associations for claims of 
injury relating to a person's weight gain, obesity, or any 
health condition associated with weight gain or obesity, having 
considered the same, report favorably thereon with an amendment 
and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     3
Background and Need for the Legislation..........................     4
Hearings.........................................................    17
Committee Consideration..........................................    17
Vote of the Committee............................................    17
Committee Oversight Findings.....................................    21
New Budget Authority and Tax Expenditures........................    21
Congressional Budget Office Cost Estimate........................    21
Performance Goals and Objectives.................................    22
Constitutional Authority Statement...............................    23
Section-by-Section Analysis and Discussion.......................    23
Changes in Existing Law Made by the Bill, as Reported............    24
Markup Transcript................................................    25
Additional Views.................................................    81
Dissenting Views.................................................    82

                             The Amendment

  The amendment is 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 of 2005''.

SEC. 2. FINDINGS; PURPOSE.

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

SEC. 3. PRESERVATION OF SEPARATION OF POWERS.

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

SEC. 4. DEFINITIONS.

  In this Act:
          (1) Engaged in the business.--The term ``engaged in the 
        business'' means a person who manufactures, markets, 
        distributes, advertises, or sells a qualified product in the 
        person's regular course of trade or business.
          (2) Manufacturer.--The term ``manufacturer'' means, with 
        respect to a qualified product, a person who is lawfully 
        engaged in the business of manufacturing the product.
          (3) Person.--The term ``person'' means any individual, 
        corporation, company, association, firm, partnership, society, 
        joint stock company, or any other entity, including any 
        governmental entity.
          (4) Qualified product.--The term ``qualified product'' means 
        a food (as defined in section 201(f) of the Federal Food, Drug, 
        and Cosmetic Act (21 U.S.C. 321(f))).
          (5) Qualified civil liability action.--
                  (A) In general.--Subject to subparagraph (B), the 
                term ``qualified civil liability action'' means a civil 
                action brought by any person against a manufacturer, 
                marketer, distributor, advertiser, or seller of a 
                qualified product, or a trade association, for damages, 
                penalties, declaratory judgment, injunctive or 
                declaratory relief, restitution, or other relief 
                arising out of, or related to a person's accumulated 
                acts of consumption of a qualified product and weight 
                gain, obesity, or a health condition that is associated 
                with a person's weight gain or obesity, including an 
                action brought by a person other than the person on 
                whose weight gain, obesity, or health condition the 
                action is based, and any derivative action brought by 
                or on behalf of any person or any representative, 
                spouse, parent, child, or other relative of that 
                person.
                  (B) Exception.--A qualified civil liability action 
                shall not include--
                          (i) an action based on allegations of breach 
                        of express contract or express warranty, 
                        provided that the grounds for recovery being 
                        alleged in such action are unrelated to a 
                        person's weight gain, obesity, or a health 
                        condition associated with a person's weight 
                        gain or obesity;
                          (ii) an action based on allegations that--
                                  (I) a manufacturer or seller of a 
                                qualified product knowingly violated a 
                                Federal or State statute applicable to 
                                the marketing, advertisement, or 
                                labeling of the qualified product with 
                                intent for a person to rely on that 
                                violation;
                                  (II) such person individually and 
                                justifiably relied on that violation; 
                                and
                                  (III) such reliance was the proximate 
                                cause of injury related to that 
                                person's weight gain, obesity, or a 
                                health condition associated with that 
                                person's weight gain or obesity; or
                          (iii) an action brought by the Federal Trade 
                        Commission under the Federal Trade Commission 
                        Act (15 U.S.C. 41 et seq.) or by the Federal 
                        Food and Drug Administration under the Federal 
                        Food, Drug, and Cosmetic Act (21 U.S.C. 301 et 
                        seq.).
          (6) Seller.--The term ``seller'' means, with respect to a 
        qualified product, a person lawfully engaged in the business of 
        marketing, distributing, advertising, or selling a qualified 
        product.
          (7) State.--The term ``State'' includes each of the several 
        States of the United States, the District of Columbia, the 
        Commonwealth of Puerto Rico, the Virgin Islands, Guam, American 
        Samoa, and the Commonwealth of the Northern Mariana Islands, 
        and any other territory or possession of the United States, and 
        any political subdivision of any such place.
          (8) Trade association.--The term ``trade association'' means 
        any association or business organization (whether or not 
        incorporated under Federal or State law) that is not operated 
        for profit, and 2 or more members of which are manufacturers, 
        marketers, distributors, advertisers, or sellers of a qualified 
        product.

                          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 claiming it should 
be held liable for the over-consumption of its legal products. 
H.R. 554 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 obesity-related liability claims.
    H.R. 554 as reported by the Committee 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 the 
legislation 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, marketer, distributor, 
advertiser, or seller of a qualified product, or a trade 
association, for damages, penalties, declaratory judgment, 
injunctive or declaratory relief, restitution, or other relief 
arising out of, or related to a person's accumulated acts of 
consumption of a qualified product and weight gain, obesity, or 
a health condition that is associated with a person's weight 
gain or obesity. 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: (1) an action based on 
allegations of breach of express contract or express warranty, 
provided that the grounds for recovery being alleged in such 
action are unrelated to a person's weight gain, obesity, or a 
health condition associated with a person's weight gain or 
obesity; (2) an action based on allegations that a manufacturer 
or seller of a qualified product knowingly violated a Federal 
or State statute applicable to the marketing, advertisement, or 
labeling of the qualified product with intent for a person to 
rely on that violation, such person individually and 
justifiably relied on that violation, and such reliance was the 
proximate cause of injury related to that person's weight gain, 
obesity, or a health condition associated with that person's 
weight gain or obesity; or (3) an action brought by the Federal 
Trade Commission under the Federal Trade Commission Act (15 
U.S.C. 41 et seq.) or by the Federal Food and Drug 
Administration under the Federal Food, Drug, and Cosmetic Act 
(21 U.S.C. 301 et seq.).

                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 . . 
        . 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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

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 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.
---------------------------------------------------------------------------
    \5\ See Personal Responsibility in Food Consumption Act, 108th 
Cong. 33 (June 19, 2003) (statement of Christianne Ricchi, the National 
Restaurant Association before the House Commercial and Administrative 
Law Subcommittee).
---------------------------------------------------------------------------
    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 learn 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\
---------------------------------------------------------------------------
    \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 (last visited March 5, 2004).
---------------------------------------------------------------------------
    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 personal injury 
attorney who is credited as the mastermind behind recent 
obesity-related lawsuits against 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\ 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\ 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.'' \14\
---------------------------------------------------------------------------
    \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).
    \14\ Julia Duin, ``Obese People Use Lawsuits to Get Government 
Involved,'' The Washington Times (June 11, 2003) at A5.
---------------------------------------------------------------------------
    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. \15\ However, in January, 2005, the United 
States Court of Appeals for the Second Circuit revived the 
lawsuit and allowed it to continue, stating that ``We hold that 
the district court incorrectly dismissed plaintiffs' claims 
under New York General Business Law Sec. 349 . . . What is 
missing from the [plaintiff's] amended complaint . . . is any 
express allegation that any plaintiff specifically relied to 
his/her detriment on any particular representation made in any 
particular McDonald's advertisement or promotional material . . 
. [However,] a private action brought under Sec. 349 does not 
require proof of actual reliance.'' \16\
---------------------------------------------------------------------------
    \15\ 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.'').
    \16\ Pelman v. McDonald's Corp., 396 F.3d 508, 510-11 (2d. Cir. 
2005).
---------------------------------------------------------------------------
    Consequently, in light of these recent and troubling legal 
developments, H.R. 554 was amended at Committee to make clear 
that any allegation of fraud can only be brought by someone who 
can prove they actually suffered harm as a result of the fraud, 
namely by showing that someone made a materially false 
statement about a food product, and that the person suing 
individually and justifiably relied on the false statement, and 
that reliance was the proximate cause of their injury. These 
standards are derived from traditional, stringent fraud 
elements.\17\
---------------------------------------------------------------------------
    \17\ See Black's Law Dictionary (defining ``fraud'' as ``[a] 
knowing misrepresentation of the truth or concealment of a material 
fact to induce another to act to his or her detriment.'') (8th ed. 
2004) (fraud).
---------------------------------------------------------------------------
    Personal injury attorney John Banzhaf \18\ said recently, 
``You may not like it . . . but we'll find a judge. And then 
we'll find a jury'' \19\ 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.\20\
---------------------------------------------------------------------------
    \18\ 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.
    \19\ MSNBC, ``Abrams Report'' (January 23, 2003) (transcript).
    \20\ 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.'' \21\ 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.\22\ 
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:
---------------------------------------------------------------------------
    \21\ The Manhattan Institute, Center for Legal Policy, Trial 
Lawyers Inc. (2003), available at http://www.triallawyersinc.com, at 2.
    \22\ See id., at 2, 6 (``Significantly, these estimates exclude the 
tobacco settlements, most contract and securities litigations, and most 
punitive damages . . .'').

        [O]ne 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.\23\
---------------------------------------------------------------------------
    \23\ 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.\24\ 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.'' 
\25\
---------------------------------------------------------------------------
    \24\ 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.'').
    \25\ See id. at 453 (citing the ``most surprising result [of] the 
large portion-size increases for food consumed at home--a shift that 
indicates marked changes in eating behavior in general.'').
---------------------------------------------------------------------------
    According to The Washington Times:

        An overhead projection on display yesterday at a [2004] 
        public health law conference summed up the group's 
        efforts: ``Patience, hell. Let's sue somebody.'' . . . 
        A panel of four lawyers argued that the fat lawsuit 
        movement . . . would need to extend beyond the obvious 
        targets like restaurants, fast-food chains and food 
        manufacturers to bring about substantial policy changes 
        like tobacco lawsuits did . . . ``We must remember that 
        the anti-tobacco movement did not just sue the tobacco 
        companies. We sued lots of people,'' Mr. [John] Banzhaf 
        said.\26\
---------------------------------------------------------------------------
    \26\ Marguerite Higgins, ``Lawyers See Obese U.S. Ripe for Fat 
Lawsuits,'' The Washington Times (September 20, 2004) at A4, A11 
(emphasis added).

    Also according to The Washington Times, ``A single lawsuit 
against the food industry is not enough . . . That message was 
the underlying theme for the conference on legal approaches to 
obesity that commenced [in Boston] . . . `We know that 
litigation ultimately wins,' said George Washington University 
law professor John Banzhaf III, one of the leaders of the 
obesity lawsuits.'' \27\
---------------------------------------------------------------------------
    \27\ Marguerite Higgins, ``Anti-obesity Group Mulls Swell in Suits: 
Doctors Eyed for Legal Action,'' The Washington Times (September 19, 
2004) at A2.
---------------------------------------------------------------------------

       H.R. 554 IS NARROWLY TAILORED LEGISLATION THAT PRESERVES 
                         STATE AND FEDERAL LAWS

    Every state has its own deceptive trade practices laws, and 
a knowing violation of any of such state laws could allow suits 
to go forward under the legislation if the criteria specified 
in Sec. 4(5)(B)(ii) are met. Further, under Federal law,\28\ 
states remain free to require labeling of food sold at 
restaurants.\29\ Consequently, states remain free to pass laws 
requiring that the restaurant industry provide nutritional 
information to customers. H.R. 554 also allows lawsuits to 
proceed when there is a breach of express contract or express 
warranty provided that the grounds for recovery alleged are 
unrelated to a person's weight gain, obesity, or a health 
condition associated with a person's weight gain or 
obesity.\30\ In addition, H.R. 554 does not affect actions 
brought by the Federal Trade Commission under the Federal Trade 
Commission Act, or by the Federal Food and Drug Administration 
under the Food, Drug, and Cosmetic Act.\31\ Finally, H.R. 554 
makes clear that ``No provision of this Act shall be construed 
to create a public or private cause of action of remedy.'' \32\
---------------------------------------------------------------------------
    \28\ See Nutrition Labeling and Education Act, Pub. L. No. 101-535.
    \29\ See 21 U.S.C. Sec. 343(q)(5)(A)(i)-(ii).
    \30\ See H.R. 554, Sec. 4(5)(B)(i).
    \31\ See H.R. 554, Sec. 4(5)(B)(iii).
    \32\ See H.R. 554, Sec. 3(e).
---------------------------------------------------------------------------
    H.R. 554 only applies to obesity-related claims--that is, 
to claims based on ``weight gain'' or ``obesity'' or an 
associated health condition. 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.

                 THE PUBLIC OVERWHELMINGLY OPPOSES THE 
                    LAWSUITS H.R. 554 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. Only 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.'' 
\33\ And another recent poll shows that only 6% of Americans 
think food companies and restaurants are primarily responsible 
for obesity. As reported in The Washington Times:
---------------------------------------------------------------------------
    \33\ 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).

        In a recent poll conducted by Dutko Worldwide (800 
        registered voters, March 21-26, 2005), we asked voters 
        ``who bears the greatest responsibility for obesity'' 
        in the United States--individuals, parents, doctors, 
        schools, restaurants, food companies or nutrition 
        educators. An overwhelming majority of voters (63 
        percent) believes ``individuals themselves'' bear the 
        greatest responsibility, followed next by parents (22 
        percent). Not only are these results impressive for 
        those advocating more personal responsibility, but the 
        percentage that believe food companies (4 percent), 
        restaurants (2 percent) and schools (1 percent) bear 
        responsibility is stunningly low, given all the media 
        attention implicating these institutions in the obesity 
        crisis.\34\
---------------------------------------------------------------------------
    \34\ Gary Andres, ``The Waistline Wars,'' The Washington Times 
(April 20, 2005) at A19.

---------------------------------------------------------------------------
    As another recent survey revealed:

        Even more striking, consumers are strongly against 
        obesity lawsuits being allowed against fast food 
        chains. Using a scale of 1 through 10, a hefty 74% 
        chose ``1,'' indicating that they strongly disagreed 
        that these suits should be allowed. The results suggest 
        that Americans very much agree with Congress' recent 
        efforts to prohibit these kinds of law suits against 
        the food industry.\35\
---------------------------------------------------------------------------
    \35\ Deloitte Consumer Business, ``The Weight Debate,'' (2004) at 
3.

    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. . . .'' \36\
---------------------------------------------------------------------------
    \36\ New York Times Co. v. Sullivan, 376 U.S. 254, 271 (1964) 
(quoting James Madison).
---------------------------------------------------------------------------
    USA Today stated in an editorial opposing obesity lawsuits 
that ``lawsuits . . . are no way to trim the nation's 
midsection. Market forces and public education work better . . 
. Ultimately, good eating habits are a matter of personal and 
parental responsibility. As the trial judge in the McDonald's 
case put it: `If a person knows or should know that eating 
copious orders of supersized McDonald's products is unhealthy 
and may result in weight gain, it is not the place of the law 
to protect them from their own excesses.' '' \37\ 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.'' \38\
---------------------------------------------------------------------------
    \37\ ``Don't Blame the Burgers,'' USA Today (editorial) (January 
31, 2005) at 10A.
    \38\ Editorial, ``Fast Food Foolishness,'' The Los Angeles Times 
(July 7, 2003) at B10.
---------------------------------------------------------------------------

                H.R. 554 WILL HELP RESTORE A MEASURE OF 
                        PERSONAL RESPONSIBILITY

    Dr. Gerard Musante is a clinical psychologist with training 
at Duke University Medical Center who has worked for more than 
30 years with thousands of obese patients. He is the founder of 
Structure House, a residential weight loss facility in Durham, 
North Carolina. Dr. Musante said the following at a Senate 
hearing on similar legislation during the last Congress:

        ``Lawsuits are pointing fingers at the food industry in 
        an attempt to curb the nation's obesity epidemic. These 
        lawsuits do nothing but enable consumers to feel 
        powerless in a battle for maintaining one's own 
        personal health. The truth is, we as consumers have 
        control over the food choices we make, and we must 
        issue our better judgment when making these decisions. 
        Negative lifestyle choices cause obesity, not a trip to 
        a fast food restaurant or a cookie high in trans fat . 
        . . Through working with obese patients, I have learned 
        that the worst thing one can do is to blame an outside 
        force to get themselves `off the hook,' to say it's not 
        their fault, and that they are a victim . . . Congress 
        has rightly recognized the danger of allowing Americans 
        to continue blaming others for the obesity epidemic. It 
        is imperative that we prevent lawsuits from being filed 
        against any industry for answering consumer demands. 
        The fact that we are addressing the issue here today is 
        a step in the right direction.'' \39\
---------------------------------------------------------------------------
    \39\ Written Testimony of Dr. Gerard Musante, Founder, Structure 
House, before the Senate Subcommittee on Administrative Oversight and 
the Courts (October 16, 2003), available at http://
judiciary.senate.gov/testimony.cfm?id=963&wit--id=2730.

    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 . . .'' \40\
---------------------------------------------------------------------------
    \40\ Susan Finn, The Washington Times (Letter to the Editor) 
(October 22, 2003) at A22.
---------------------------------------------------------------------------
    As the Wall Street Journal recently editorialized, 
``Earlier [last] year, the House of Representatives passed the 
Personal Responsibility in Food Consumption Act, which would 
shield food vendors from civil claims premised on weight gain . 
. . [A]llowing trial lawyers to exploit the obesity epidemic--
and encouraging Americans to blame their dietary excesses on 
someone else--isn't going to make anyone healthier.'' \41\
---------------------------------------------------------------------------
    \41\ ``Round Figures,'' The Wall Street Journal (editorial) 
(November 30, 2004) at A18.
---------------------------------------------------------------------------
    On the other hand, 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.'' \42\
---------------------------------------------------------------------------
    \42\ 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?'' \43\ As Will Rogers once observed, Americans 
are ``letting lawyers instead of their conscience be their 
guide.''
---------------------------------------------------------------------------
    \43\ 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.\44\
---------------------------------------------------------------------------
    \44\ Philip K. Howard, The Collapse of the Common Good (New York: 
2001) at 22-23.

    Philip Howard has also written that ``It is precisely 
[lawmakers'] responsibility to decide, on behalf of the common 
good, when people should be able to sue and when they should 
not. Law is not a free-market commodity. Suing is the use of 
state power by one citizen against another.'' \45\
---------------------------------------------------------------------------
    \45\ Philip K. Howard, ``It's No Fun Playing Torts,'' Legal Times 
(November 15, 2004).
---------------------------------------------------------------------------
    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 . . .'' \46\
---------------------------------------------------------------------------
    \46\ Hearsay: The Lawyer's Column, The Washington Post (January 27, 
2003) at E10.

    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.\47\
---------------------------------------------------------------------------
    \47\ ``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.'' \48\
---------------------------------------------------------------------------
    \48\ Philip K. Howard, The Collapse of the Common Good (New York: 
2001) at 58.
---------------------------------------------------------------------------
    H.R. 554 will encourage society to focus on the true causes 
of obesity: a lack of exercise. According to the Department of 
Health and Human Services, ``physical inactivity contributes to 
300,000 preventable deaths a year in the United States.'' \49\
---------------------------------------------------------------------------
    \49\ 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.\50\ Similarly for adults, as manual labor has become 
less prevalent and sedentary jobs have become more prevalent, 
adult obesity has risen.\51\
---------------------------------------------------------------------------
    \50\ L.A. Sutherland, ``Health Trends in US Adolescents Over the 
Past 20 Years,'' Program No. 708.7, Abstract 7714.
    \51\ 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).
---------------------------------------------------------------------------
    Furthermore, Harvard University researchers tracked the 
snack food intake during 1996-1998 of almost 15,000 children 
aged 9 to 14 years. Their results were reported in the 
International Journal of Obesity. The researchers concluded, 
``Our results suggest that although snack foods may have low 
nutritional value, they were not an important independent 
determinant of weight gain among children and adolescents.'' 
\52\
---------------------------------------------------------------------------
    \52\ Steven Millor, ``Snack Foods Don't Fatten Kids,'' Fox News 
Channel (September 24, 2004).
---------------------------------------------------------------------------
    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.\53\
---------------------------------------------------------------------------
    \53\ 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. 554 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,\54\ which threatens to take money away from schools, 
including physical education programs, and give it to personal 
injury attorneys.
---------------------------------------------------------------------------
    \54\ 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.''). Currently, only one state, Illinois, 
still mandates physical education classes for grades K-12. 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.'' \55\
---------------------------------------------------------------------------
    \55\ Laura Bradford, ``Fat Foods: Back In Court'' TIME Online, 
Inside Business (August 3, 2003).

    According to the National Association of Secondary School 
Principals, such lawsuits against schools threaten their 
ability to raise funds for vital programs.\56\ Indeed, today 
only one state--Illinois--requires daily physical education 
classes for kindergarten through 12th grade.\57\
---------------------------------------------------------------------------
    \56\ 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.'').
    \57\ 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. 554 WILL PRESERVE THE SEPARATION OF POWERS

    The drive by personal injury attorneys who represent 
overeaters to blame those who serve them food and to collect 
unlimited monetary damages is an attempt to accomplish through 
litigation that which has not been achieved by legislation and 
the democratic process.
    John Banzhaf, a personal injury attorney who helped 
spearhead lawsuits against tobacco companies, 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.\58\
---------------------------------------------------------------------------
    \58\ ``Food Fight,'' CBS News ``60 Minutes'' (September 15, 2002) 
(transcript).

    Mr. Banzhaf has also said, ``if the legislatures won't 
legislate, then the trial lawyers will litigate.'' \59\
---------------------------------------------------------------------------
    \59\ 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'' \60\ 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.'' \61\ Such lawsuits erode down the separation of powers 
of the branches of government.
---------------------------------------------------------------------------
    \60\ Penelas v. Arms Technology Inc. et al., No. 3D00-113, 
dismissal affirmed (Fla. Dist. Ct. App., 3d Dist., Feb. 14, 2001).
    \61\ 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 
attempts to have the judiciary intrude into the decision-making 
process properly within the sphere of another branch of 
government, namely legislatures.\62\ Those filing such lawsuits 
seek to circumvent legislatures and the popular will. As Philip 
Howard has written, ``legislatures must reclaim the 
responsibility to set the boundaries who can sue for what. 
That's what it means to live under the rule of law.'' \63\
---------------------------------------------------------------------------
    \62\ 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.'').
    \63\ Philip K. Howard, ``Charity Case,'' The Wall Street Journal 
(March 17, 2005).
---------------------------------------------------------------------------

            CONGRESS HAS THE CLEAR CONSTITUTIONAL AUTHORITY 
                           TO ENACT H.R. 554

    The lawsuits against the food industry H.R. 554 addresses 
directly implicate core federalism principles articulated by 
the United States Supreme Court, 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 . . .'' \64\ Congress may 
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.
---------------------------------------------------------------------------
    \64\ 517 U.S. 559, 571 (1996).
---------------------------------------------------------------------------
    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.
    As the Supreme Court elaborated in Healy v. Beer 
Institute,\65\ concerning the extraterritorial effects of state 
regulations:
---------------------------------------------------------------------------
    \65\ 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.\66\
---------------------------------------------------------------------------
    \66\ 491 U.S. at 336-37 (citations omitted).

    James Madison, in Federalist No. 42, described the purpose 
---------------------------------------------------------------------------
of the Commerce Clause as follows:

        A very material object of this power was the relief of 
        the States which import and export through other 
        States, from the improper contributions levied on them 
        by the latter. Were these at liberty to regulate the 
        trade between State and State, it must be foreseen that 
        ways would be found out to load the articles of import 
        and export, during the passage through their 
        jurisdiction, with duties which would fall on the 
        makers of the latter and the consumers of the 
        former.\67\
---------------------------------------------------------------------------
    \67\ The Federalist Papers, Federalist No. 22 (Madison) at 267-68 
(Clinton Rossiter ed., 1961).

    That is, Madison foresaw the problem in which products or 
services would be made to cost more to consumers in one state 
because other states those products and services passed through 
would levy duties on them. That is precisely the problem today: 
some states, by allowing frivolous lawsuits to be brought for 
unlimited damages in cases involving products or services that 
touch their jurisdictions are raising the costs of providing 
those products and services to out-of-state customers, 
resulting in higher prices and lost jobs across multiple states 
or nationwide. It is the duty of Congress to prevent such 
unfairness.\68\
---------------------------------------------------------------------------
    \68\ James Madison, according to his own notes of what he argued at 
the Constitutional Convention (he referred to himself in the third 
person), made clear that Congress must have the power to regulate 
commerce in this manner: ``Whether the States are now restrained from 
laying tonnage duties depends on the extent of the power `to regulate 
commerce.' . . . He was more & more convinced that the regulation of 
Commerce was in its nature indivisible and ought to be wholly under one 
authority.'' Debates on the Adoption of the Federal Constitution in the 
Convention Held at Philadelphia in 1787 (Jonathan Elliot, ed. 1845) (as 
reported by James Madison, notes of May 31, 1787) at 548.
---------------------------------------------------------------------------

              H.R. 554 INCLUDES APPROPRIATE DISCOVERY AND 
                          PLEADING PROVISIONS

    H.R. 554 includes discovery provisions designed to prevent 
fishing expeditions.\69\ These provisions provide that 
discovery of documents be stayed while a court decides whether 
the case should be dismissed unless a court decides that 
particular discovery is necessary to preserve evidence or to 
prevent undue prejudice to a party. As the Wall Street Journal 
editorialized, ``What has the personal-injury set so excited is 
that . . . discovery proceedings will cost defendants millions 
of dollars, which gives the plaintiffs leverage in any 
potential settlement talks.'' \70\ Such provisions also allows 
for court sanctions under applicable rules if a defendant 
destroys any documents relevant to the litigation.\71\
---------------------------------------------------------------------------
    \69\ See Sec. 3(c)(1).
    \70\ ``Fat Chance,'' The Wall Street Journal (editorial) (February 
1, 2005) at A12.
    \71\ See Sec. 3(c)(2).
---------------------------------------------------------------------------
    H.R. 554 also appropriately requires that any complaint 
alleging that a lawsuit should go forward under the exceptions 
in Sec. 4(5)(B) of H.R. 554 must state with particularity each 
element of the cause of action, the Federal and State statutes 
or other laws that were allegedly violated, the specific facts 
alleged to constitute the claimed violation of law, and the 
specific facts alleged to have caused the claimed injury.\72\ 
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. Rather, 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.
---------------------------------------------------------------------------
    \72\ See H.R. 554, Sec. 3(d).
---------------------------------------------------------------------------

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 554 
during the 109th Congress.

                        Committee Consideration

    On May 25, 2005, the Committee met in open session and 
ordered favorably reported the bill H.R. 554 with an amendment 
by a recorded vote of 16 yeas to 8 nays, 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. 554.
    1. Mr. Watt offered an amendment to preclude the 
application of the Act to lawsuits in State court. By a 
rollcall vote of 8 yeas to 17 nays, the amendment was defeated.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................                              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Chabot......................................................                              X
Mr. Lungren.....................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................                              X
Mr. Inglis......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Mr. Flake.......................................................
Mr. Pence.......................................................                              X
Mr. Forbes......................................................
Mr. King........................................................                              X
Mr. Feeney......................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Conyers.....................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner......................................................
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Smith (Washington)..........................................
Mr. Van Hollen..................................................
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................              8              17
----------------------------------------------------------------------------------------------------------------

    2. Mr. Watt offered an amendment that would have precluded 
application of the Act to cases in which a judgment had been 
entered by a trial or appellate court, and where a settlement 
had been reached and signed by both parties. By a rollcall vote 
of 8 yeas to 16 nays, the amendment was defeated.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................                              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Chabot......................................................                              X
Mr. Lungren.....................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Canno.......................................................                              X
Mr. Bachus......................................................                              X
Mr. Inglis......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Mr. Flake.......................................................                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................
Mr. King........................................................                              X
Mr. Feeney......................................................
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Conyers.....................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner......................................................
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Smith (Washington)..........................................
Mr. Van Hollen..................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................              8              16
----------------------------------------------------------------------------------------------------------------

    3. Mr. Watt offered an amendment to strike Section 3(d) of 
the bill and eliminate its pleading requirements. By a rollcall 
vote of 8 yeas to 15 nays, the amendment was defeated.

                                                   ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................                              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Chabot......................................................                              X
Mr. Lungren.....................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................
Mr. Inglis......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Mr. Flake.......................................................                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................
Mr. King........................................................                              X
Mr. Feeney......................................................
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Conyers.....................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner......................................................
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Smith (Washington)..........................................
Mr. Van Hollen..................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................              8              15
----------------------------------------------------------------------------------------------------------------

    4. Mr. Scott offered an amendment that would have provided 
that notwithstanding any other provision to the contrary in 
this Act, this Act does not apply to an action brought by a 
State agency to enforce a State consumer protection law 
concerning mislabeling or other unfair and deceptive trade 
practices. By a rollcall vote of 8 yeas to 16 nays, the 
amendment was defeated.

                                                   ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................                              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Chabot......................................................                              X
Mr. Lungren.....................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................
Mr. Inglis......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Mr. Flake.......................................................                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................
Mr. King........................................................                              X
Mr. Feeney......................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Conyers.....................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner......................................................
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Smith (Washington)..........................................
Mr. Van Hollen..................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................              8              16
----------------------------------------------------------------------------------------------------------------

    5. Motion to report with an amendment in the nature of a 
substitute was agreed to by a rollcall vote of 16 yeas to 8 
nays.

                                                   ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................              X
Mr. Smith (Texas)...............................................              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Chabot......................................................              X
Mr. Lungren.....................................................              X
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................              X
Mr. Bachus......................................................
Mr. Inglis......................................................              X
Mr. Hostettler..................................................              X
Mr. Green.......................................................
Mr. Keller......................................................              X
Mr. Issa........................................................              X
Mr. Flake.......................................................              X
Mr. Pence.......................................................              X
Mr. Forbes......................................................
Mr. King........................................................              X
Mr. Feeney......................................................              X
Mr. Franks......................................................              X
Mr. Gohmert.....................................................
Mr. Conyers.....................................................                              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................
Mr. Meehan......................................................                              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner......................................................
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................                              X
Mr. Smith (Washington)..........................................
Mr. Van Hollen..................................................                              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             16               8
----------------------------------------------------------------------------------------------------------------

                      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. 554, 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, June 6, 2005.
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. 554, the 
``Personal Responsibility in Food Consumption Act of 2005.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Gregory 
Waring (for Federal costs), Melissa Merrell (for the State and 
local impact), and Paige Piper/Bach (for the private-sector 
impact).
            Sincerely,
                                       Douglas Holtz-Eakin.

Enclosure.

H.R. 554--Personal Responsibility in Food Consumption Act of 2005
    H.R. 554 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. 554 would 
not have a significant impact on the Federal budget. Enacting 
the bill would not affect direct spending or revenues.
    H.R. 554 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 resolved, and those sources 
expect that it is unlikely that there will be many new cases 
filed in the future. Consequently, CBO estimates that the 
direct cost of the mandates (the expected value of foregone 
court awards) would be negligible and would fall well below the 
annual thresholds established by UMRA for intergovernmental 
mandates ($62 million in 2005, adjusted annually for inflation) 
and private-sector mandates ($123 million in 2005, adjusted 
annually for inflation).
    The CBO staff contacts for this estimate are Gregory Waring 
(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

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
554 would protect the American food industry, the nation's 
leading private sector employer, from unfair legal claims 
alleging it should pay monetary damages and be subject to 
equitable remedies based on legal theories claiming it should 
be held liable for the over-consumption of its legal products 
by others. H.R. 554 would preserve the separation of powers, 
support the principle of personal responsibility, and protect 
the largest private sector employers in the United States from 
financial ruin in the face of frivolous obesity-related 
liability claims.

                   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, clause 3 of the 
Constitution.

               Section-by-Section Analysis and Discussion

    The following discussion describes the bill as reported by 
the Committee.

                          SEC. 1. SHORT TITLE

    This section provides that this Act may be cited as the 
``Commonsense Consumption Act of 2005.''

                       SEC. 2. FINDINGS; PURPOSE

    This section sets out the findings and purpose of the 
legislation.

              SEC. 3. PRESERVATION OF SEPARATION OF POWERS

    This section provides in subsections (a) and (b) 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.
    This section also provides in subsection (c) that in any 
action that is allegedly of the type described in section 
4(5)(B) seeking to impose liability of any kind based on 
accumulative acts of consumption of a qualified product, the 
obligation of any party or non-party to make disclosures of any 
kind under any applicable rule or order, or to respond to 
discovery requests of any kind, as well as all proceedings 
unrelated to a motion to dismiss, shall be stayed prior to the 
time for filing a motion to dismiss and during the pendency of 
any such motion, unless the court finds upon motion of any 
party that a response to a particularized discovery request is 
necessary to preserve evidence or to prevent undue prejudice to 
that party. This subsection also provides that during the 
pendency of any stay of discovery under this legislation, the 
responsibilities of the parties with regard to the treatment of 
all documents, data compilations (including electronically 
recorded or stored data), and tangible objects shall be 
governed by applicable Federal or State rules of civil 
procedure. A party aggrieved by the failure of an opposing 
party to comply with this paragraph shall have the applicable 
remedies made available by such applicable rules, provided that 
no remedy shall be afforded that conflicts with the terms of 
this legislation.
    This sections also provides in subsection (d) that in any 
action that is allegedly of the type described in section 
4(5)(B) seeking to impose liability of any kind based on 
accumulative acts of consumption of a qualified product, the 
complaint initiating such action shall state with particularity 
each element of the cause of action; the Federal and State 
statutes or other laws that were allegedly violated; the 
specific facts alleged to constitute the claimed violation of 
law; and the specific facts alleged to have caused the claimed 
injury.
    This section also provides in subsection (e), in a rule of 
construction, that no provision of this Act shall be construed 
to create a public or private cause of action or remedy.

                          SEC. 4. DEFINITIONS

    This section provides the definitions of various terms as 
used in the legislation. The term ``person'' means any 
individual, corporation, company, association, firm, 
partnership, society, joint stock company, or any other entity, 
including any governmental entity. 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'' means a civil action 
brought by any person against a manufacturer, marketer, 
distributor, advertiser, or seller of a qualified product, or a 
trade association, for damages, penalties, declaratory 
judgment, injunctive or declaratory relief, restitution, or 
other relief arising out of, or related to a person's 
accumulated acts of consumption of a qualified product and 
weight gain, obesity, or a health condition that is associated 
with a person's weight gain or obesity, including an action 
brought by a person other than the person on whose weight gain, 
obesity, or health condition the action is based, and any 
derivative action brought by or on behalf of any person or any 
representative, spouse, parent, child, or other relative of 
that person, but a qualified civil liability action does not 
include an action based on allegations of breach of express 
contract or express warranty, provided that the grounds for 
recovery being alleged in such action are unrelated to a 
person's weight gain, obesity, or a health condition associated 
with a person's weight gain or obesity; an action based on 
allegations that a manufacturer or seller of a qualified 
product knowingly violated a Federal or State statute 
applicable to the marketing, advertisement, or labeling of the 
qualified product with intent for a person to rely on that 
violation; such person individually and justifiably relied on 
that violation; and such reliance was the proximate cause of 
injury related to that person's weight gain, obesity, or a 
health condition associated with that person's weight gain or 
obesity; or an action brought by the Federal Trade Commission 
under the Federal Trade Commission Act (15 U.S.C. 41 et seq.) 
or by the Federal Food and Drug Administration under the 
Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.).

         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 H.R. 554 
makes no changes to existing law.

                           Markup Transcript



                            BUSINESS MEETING

                        WEDNESDAY, MAY 25, 2005

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:02 a.m., in 
Room 2138, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. The Committee will come to order. A 
working quorum is present.
    [Intervening business.]
    Chairman Sensenbrenner. Pursuant to notice, I now call up 
the bill H.R. 554, the ``Personal Responsibility in Food 
Consumption Act,'' for purposes of mark up and move its 
favorable recommendation to the House.
    Without objection, the bill will be considered as read and 
open for amendment at any point, and the Chair recognizes the 
gentleman from Florida, Mr. Keller, the author of the bill, to 
explain it.
    [The bill, H.R. 554, follows:]
    
    
    Mr. Keller. Thank you, Mr. Chairman. This legislation 
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.
    The policy of the legislation is that there should be 
commonsense in a food court, not blaming other people in a 
legal court.
    Most people have enough commonsense to realize that if they 
eat an unlimited amount of french fries, milkshakes, and 
cheeseburgers, it can possibly lead to obesity. In a country 
like the United States, where freedom of choice is cherished, 
nobody is forced to order the milkshake and double cheeseburger 
instead of the Diet Coke and salad.
    Chairman Sensenbrenner. The Committee will be in order. 
There's a little too much chatter here.
    The gentleman from Florida is entitled to be heard.
    Mr. Keller. Thank you, Mr. Chairman. 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, nine out of 10 Americans opposed holding the fast food 
industry legally responsible for the diet-related health 
problems of overweight individuals. Both Congress and the 
various State legislators share the public's sentiment that it 
is wrong to allow restaurants to be sued just because an 
individual over consumes a non-defective, legal food product.
    For example, after I filed this legislation in February 
2003, 18 States have now passed laws banning these obesity 
lawsuits.
    In addition, this bill passed the U.S. House of 
Representatives last term, with a large bipartisan vote of 276 
to 139. And in the U.S. Senate last term, it was sponsored by 
Senator Mitch McConnell, and co-sponsored by Senator Harry 
Reed.
    Why is this issue worth our time? The food industry is the 
largest private sector employer in the United States, providing 
jobs for 12 million Americans. This vital sector of our 
national economy has recently come under attack by lawsuits 
alleging that it should pay monetary damages based on legal 
theories, holding it liable for the over consumption of its 
legal products by others.
    The consequences of these obesity lawsuits against the food 
industry is that consumers could pay a higher price in 
restaurants and grocery stores. Restaurants would face 
unaffordable insurance rate hikes, and jobs could be cut as a 
result.
    Is the threat of these suits real? Yes. Here are the real 
facts.
    In August 2002, John Banzhaf, a law professor who testified 
before this Committee and who played a role in suing the 
tobacco industry, went on national TV and announced the goal of 
seeking $117 billion from the food industry. Based on a 
contingency fee of 40 percent, these lawyers would stand to 
recover $47 billion for themselves in attorneys fees.
    In January 2003. Banzhaf stated ``somewhere there is going 
to be a judge and a jury that will buy this. And once we get 
the first verdict, as we did with tobacco, it will open the 
floodgates.''
    In June 2003, Banzhaf and other trial lawyers from across 
the U.S. gathered together in a nationwide conference and 
signed affidavits stating that they ``intended to encourage and 
support litigation against the food industry.''
    Indeed, lawsuits have already been filed against four 
separate fast food companies. On January 25, 2005, the United 
States Court of Appeals for the Second Circuit allowed one suit 
in New York to go forward against McDonald's on procedural 
grounds.
    Now, according to the witness called by the minority at our 
hearing on this matter, Mr. John Banzhaf, these initial 
lawsuits against restaurants. He has made the following 
statements to the media, and I will quote him.
    Quote. ``We are going to sue them and sue them and sue 
them. The very fact that lawyers are going to be making money 
out of suing restaurants is exactly what we are counting on. 
When lawyers see how lucrative these lawsuits are, they will 
all join in.''
    He goes on to say: ``I would not be surprised to see 
McDonald's pay more than $50 billion over the next decade. 
Never underestimate the tenacity of a lawyer working on a 
contingency fee. Once we get the first verdict, as we did with 
tobacco, it will open the floodgates.''
    Indeed the threat of obesity lawsuits was sufficient enough 
to warrant a cover story by Fortune Magazine, which shows a 
french fry located in an ashtray and asks, is fat the next 
tobacco? In my view, these lawsuits against the food industry 
won't make a single individual any skinnier. It will only make 
the trial lawyers' bank accounts fatter.
    We need to get tougher for lawyers to file frivolous 
lawsuits. We need to care about each other more, and sue each 
other less. We need to get back to the old fashion principles 
of personal responsibility and commonsense, and get away from 
this new culture where people try to always play the victim and 
blame others for their problems.
    This legislation is a step in the right direction. I urge 
my colleagues to vote yes once again. Mr. Chairman, I yield 
back.
    Chairman Sensenbrenner. The gentleman from Michigan, Mr. 
Conyers.
    Mr. Conyers. Mr. Chairman, this is one incredible piece of 
legislation. And I'd like to correct the author, the previous 
speaker about the measure because we have not had any hearings 
on this in the 109th Congress.
    But H.R. 554 does something more than ban private suits 
brought against the food industry. If you examine this measure, 
it bans suits for harm caused by dietary supplements and 
mislabeling, which have nothing to do with excess food 
consumption, and would prevent State law enforcement officials 
from bringing legal actions to enforce their own consumer 
protection laws.
    So this bill has a lot more underneath than in between the 
bun than you might suspect. If you don't believe me, section 4 
paren 5 would prevent any legal action relating to any health 
condition that is associated with a person's weight gain or 
obesity, stemming from the consumption of a food or medicinal 
product. There's no requirement whatsoever that the person 
actually have gained weight as a result of consuming the 
product. As a result, the bill could prevent persons who 
develop heart disease or diabetes from dietary supplements, 
such as Ephedra and PhenFen, from being able to obtain redress.
    This is a seriously mischaracterized bill that goes way 
beyond personal responsibility in food consumption.
    Even worse, the bill bans lawsuits on a retroactive basis, 
so it would throw out medical cases currently pending in court. 
This is a far cry from the stated concerns that reportedly led 
to the creation of this legislation.
    The final thing that it does. It prevents State law 
enforcement officials from enforcing their own laws. Under 
section 4, the bill applies to legal actions brought by any 
persons, which, in turn, is defined to include any Government 
entity, which means State attorneys general, who would then be 
prevented from pursuing actions for deceptive practices and 
false advertising against the food industry.
    Again, this is a vast departure from most of the so-called 
tort reform bills considered by this Committee, which are 
drafted to apply to private lawsuits and not to restrain public 
law enforcement efforts.
    So the legislation deals with a nearly non-existent 
problem. There have been only a handful of private obesity 
suits that have been brought, and all but one have been 
dismissed.
    The system is working fine. There is absolutely no crisis. 
Frivolous suits are thrown out of courts, and lawyers who bring 
them are subject to fines and other sanctions.
    And so join with me in holding down the near panic or 
pseudo panic that has been hyped up around this measure, and 
let's take this off the table for once and for all.


    Mr. Conyers. Thank you, Mr. Chairman. I return any unused 
time.
    Chairman Sensenbrenner. Without objection. All Members' 
opening statements will appear in the record at this point.
    The chair recognizes the gentleman from Florida for 
purposes of offering an amendment in the nature of a 
substitute.
    Mr. Keller. Thank you, Mr. Chairman.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment in the nature of a substitute to H.R. 
554, offered by Mr. Keller----
    Mr. Keller. Mr. Chairman, I ask unanimous consent that the 
amendment be considered as read?
    Chairman Sensenbrenner. Without objection.
    [The amendment follows:]
    
    
    Mr. Keller. Mr. Chairman, substantively speaking, the 
amendment in the nature of a substitute is about 99 percent the 
same bill that we passed in this Committee and on the House 
floor, aside from a few technical corrections.
    There are two provisions in the substitute amendment that 
are worth noting and pointing out.
    First, we added a findings section to the front of the bill 
to better articulate the intent and purpose of the bill.
    Second, we clarified the type of lawsuits that can still go 
forward under this bill, and showed that it's a narrowly 
tailored bill.
    I'll briefly address each of these changes.
    First, with respect to the findings and purpose section 
regarding our legislative intent, last year I had the chance to 
speak with Chief Justice William Rehnquist at a small gathering 
of Members, hosted by our congressional caucus on the judicial 
branch.
    The Chief Justice made a suggestion in general. He said to 
avoid confusion regarding any particular bill's legislative 
intent or legislative history, he suggested that Members of 
Congress specifically state the legislative intent in a 
particular statute right there in the legislation. That sounded 
like a good commonsense idea, and we have done just that.
    The second change we make is to show that this is a 
narrowly drawn measured piece of legislation, which doesn't 
immunize the food industry. It spells out exactly the type of 
claims that are able to go forward, contrary to what you heard 
Mr. Conyers say. The words medical cases and dietary 
supplements don't even appear in this legislation. Claims for 
mislabeling can still go forward and specifically say so.
    Let me tell you what can go forward and what doesn't.
    This bill only applies to obesity-related claims, that is 
the claims based on weight gain or obesity. That means lawsuits 
can go forward under the 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.
    Similarly, if someone had a life threatening allergy to 
peanuts and they ate a candy bar that was mislabeled because it 
did not reveal that the candy bar had peanuts, then that claim 
could still go forward on at least two grounds: first, it 
doesn't have anything to do with weight gain or obesity; and, 
second, there is a specific exception for breach of contract or 
warranty claims which are unrelated to weight gain or obesity.
    Finally, the substitute amendment makes clear that certain 
obesity-related claims could go forward in circumstances in 
which the plaintiff can specifically allege that they suffered 
harm as a result of a State or Federal law, including those 
dealing with marketing, advertising, or labeling of a food 
product, provided that the plaintiff can allege that he relied 
upon such inaccurate labeling or advertising and that such 
reliance was the proximate cause of the injury.
    In short, this substitute amendment places the bill within 
the strike zone of reasonableness. One of the masterminds of 
the obesity lawsuits, John Banzhaf said, ``if the legislators 
won't legislate, then the trial lawyers will litigate.''
    Of course, such lawsuits only break down the separation of 
powers of the branches of Government by improperly asking the 
court to substitute its judgement for that of the legislative 
body and by wrongfully attempting to regulate through 
litigation.
    In contrast, this bill gets it right. I urge my colleagues 
to vote yes on the substitute amendment.
    Mr. Chairman, I yield back the balance of my time.
    Chairman Sensenbrenner. Are there any second degree 
amendments to the Keller Amendment in the nature of a 
substitute?
    The gentleman from North Carolina, Mr. Watt.
    Mr. Watt. Mr. Chairman, I have an amendment at the desk. 
That's Watt Two--02.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment to the amendment in the nature of a 
substitute to H.R. 554, offered by Mr. Watt. Section 3(a) 
strike or state----
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    [The amendment follows:]
    
    
    Mr. Watt. Thank you, Mr. Chairman. If this bill was about 
only fat lawsuits or unhealthy eating habits, I think I'd be 
right there. I would have to say I'm not a big fan of fat 
lawsuits. I think they've gone overboard, too.
    But the bill is about a lot more than that in my judgement. 
It's about our whole federalist form of Government, and some of 
the points that Mr. Keller made in his opening statement 
actually illustrate that.
    Since the bill was originally introduced, 18 State 
legislatures have enacted so-called cheeseburger laws to 
prohibit certain claims from their courts. While most of those 
enacted apply retroactively, others, specifically Kansas, 
Arizona, and Colorado, do not. Some provide for a stay of 
discovery. Others do not. Some establish affirmative defenses. 
Others do not.
    In short, in the considered judgement of each of these 18 
State legislatures, laws have been enacted that best serve the 
residents of those States.
    This bill completely preempts those laws and brings it to a 
screeching halt--brings to a screeching halt the work of 26 
other States that have pending before their State legislatures 
similar legislative efforts.
    This amendment would simply apply the facts of this bill to 
the Federal courts to the extent that we have jurisdiction and 
this is a good idea.
    We ought to exercise that jurisdiction in the Federal 
courts and stop pretending that we believe in States rights at 
the same time that we are trampling on State laws and presuming 
that State legislatures are either stupid or uncaring about the 
citizens of their States.
    I think the record is there that the States are acting on 
this. You've got 18 States that have already acted on it. 
You've got 26 other States that are contemplating action of one 
kind or another, and this whole idea that we are somehow, 
because we said at the Federal level more enlightened and more 
brilliant and--has got to stop at some point.
    And I don't know where we stop if we don't at least try to 
start here in stopping it.
    It would be something else if the States--well, for me it 
wouldn't be something else if the States were doing nothing. I 
would still respect the States. But at least those of you who 
have told us time after time after time that you believe in the 
federalist--Federal form of Government that States have 
prerogatives. This is one of those areas where States have had 
prerogatives. And we should respect those prerogatives, and I 
would hope that with this modest amendment, we could take a 
step back--at least we--you know, if you all think this is a 
great idea, which I don't--I mean I'm still going to vote 
against it--even at the Federal level.
    But to the extent that you think it's a great idea, at 
least limit it to the courts that we have jurisdiction over, 
and don't get carried away when our State legislatures are 
acting in this area.
    And I would ask your support for this amendment, and yield 
back the balance of my time.
    Chairman Sensenbrenner. The gentleman from Florida.
    Mr. Keller. Thank you, Mr. Chairman. I respect the 
gentleman as well as his argument. This amendment has been 
argued before. It as defeated on the House floor by a vote of 
158 to 261.
    I'll be brief in my remarks. One of the main reasons we 
have to have this on the Federal level is to prevent forum 
shopping. Right now, you can't bring this type of suit in my 
home State of Florida or in Illinois or Kentucky or Ohio, which 
are all--happen to be headquarters of major fast food 
companies. You can't bring these suits in 18 States. That's why 
people go to States like New York, where you have very liberal 
pleading requirements and file these suits and will proceed.
    And I think we have the authority under the Commerce Clause 
to enact this legislation to prevent a few States from causing 
great economic harm to the food industry, which is the largest 
non-governmental employer in the nation, and I would yield back 
the balance of my time.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from North Carolina, Mr. Watt.
    Those in favor will say aye.
    Opposed, no.
    Chairman Sensenbrenner. The noes appear to have it.
    Mr. Watt. I ask for a recorded vote. I guess he was going 
to ask for one if you have moved the other way.
    Chairman Sensenbrenner. Yeah. A recorded vote is requested.
    Those in favor of the Watt 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. No.
    The Clerk. Mr. Coble, no. Mr. Smith?
    Mr. Smith of Texas. 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. Lungren?
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    [No response.]
    The Clerk. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    [No response.]
    The Clerk. Mr. King?
    [No response.]
    The Clerk. Mr. Feeney?
    [No response.]
    The Clerk. Mr. Franks?
    [No response.]
    The Clerk. Mr. Gohmert?
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    [No response.]
    The Clerk. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Smith?
    [No response.]
    The Clerk. Mr. Van Hollen?
    [No response.]
    The Clerk. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members who wish to cast or change 
their vote. The gentleman from Alabama, Mr. Bachus.
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no.
    Chairman Sensenbrenner. The gentleman from Iowa, Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no.
    Chairman Sensenbrenner. The gentleman from Indiana, Mr. 
Pence?
    Mr. Pence. No.
    The Clerk. Mr. Pence, no.
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Chairman Sensenbrenner. The gentleman from Massachusetts, 
Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye.
    Chairman Sensenbrenner. The gentleman from Arizona, Mr. 
Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their votes?
    If not, the Clerk will report the vote.
    The Clerk. Mr. Chairman, there are 8 ayes and 17 noes.
    Chairman Sensenbrenner. And the amendment in the second 
degree is not agreed to.
    Mr. Watt. Mr. Chairman.
    Chairman Sensenbrenner. Are there further amendments?
    The gentleman from North Carolina.
    Mr. Watt. Mr. Chairman, I have an amendment at the desk, 
Watt 05.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment to the amendment in the nature of a 
substitute to H.R. 554 offered by Mr. Watt. Page 2, Section 2--
--
    Mr. Watt. Mr. Chairman, I ask unanimous consent the 
amendment be considered as read.
    The Clerk.--to line 12, delete, quote, comma, State 
legislatures----
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    [The amendment follows:]
    
    
    Mr. Watt. Thank you, Mr. Chairman.
    I almost have to laugh when I read this. Mr. Keller 
represented to us that the Chief Justice told him that he ought 
to put in the purpose of the law, and this is what this one 
reads: the purpose of this act is to allow Congress, State 
legislatures, and regulatory agencies to determine appropriate 
laws, so forth and so on.
    We are taking every prerogative that State legislatures 
have in this area away from them. How in the world could we put 
in a finding that this bill, the purpose of this bill is to 
give State legislatures any kind of say? I mean, that can't be. 
This must be a mistake, and I hope even under the rules of this 
Committee and just reaffirmed by Lamar Smith and the Chairman 
that every once in awhile, when you do something that is really 
outrageous, you would at least acknowledge that it doesn't make 
any sense, because this one doesn't.
    I would just ask that we not insult the States by telling 
them that we are giving them some authority at the same time as 
we are taking all of their authority away.
    I yield back.
    Chairman Sensenbrenner. The gentleman from Florida.
    Mr. Keller. Thank you, Mr. Chairman.
    First, I would make one correction. I didn't sit down with 
Chief Justice Rehnquist to talk about any specific case or 
controversy or any specific piece of legislation. He talked 
about legislation in general, to avoid future debates between 
justices and litigants about what the legislative history is, 
he said just tell us your intent. So I don't have any special 
insight with him with respect to this particular bill. Let me 
clarify that.
    I'm going to oppose your change, and I'll be happy to 
explain why. If you look at page 6 of the bill starting at line 
17, it talks about the claims that can go forward, and that's 
an action based on allegations that a manufacturer or seller of 
a qualified product knowingly violated a Federal or State 
statute applicable to the marketing, advertising, or labeling 
of a qualified product with the intent for a person to rely on 
that violation, such person individually and justifiably relied 
on that violation, and that reliance was the proximate cause of 
the injury related to that weight gain.
    So States are free to come up with statutes that we don't 
and can bring suit over this. I will give you just one example: 
under the Nutrition Labeling and Education Act passed by 
Congress in 1990, restaurants are not required to put 
nutritional labeling on their menu, but it doesn't prevent 
States from doing that. And so, States would have that right.
    And so, if a State passed some law that said that you must 
represent what the calories are of a particular product, and 
someone ran an advertisement for McDonald's saying we want you 
to buy our Big Macs because they're only 50 calories, and 
they're really healthy, and you go, relying on that, buy a Big 
Mac, and you eat it continually, and you eat them over 6 
months, and you get fat, because they're really over 500 
calories, you'd have a pretty good claim under State law.
    So I think we have the appropriate deference in this 
particular situation, and I would urge my colleagues to vote no 
and yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, it is difficult to debate this. 
Having just defeated an amendment to give the States some role 
in this, defeated that amendment, now, we're going to declare 
that they have some right or some say is just absurd.
    I support the amendment and yield to the gentleman from 
North Carolina.
    Mr. Watt. Mr. Chairman, I don't want to belabor this. I 
just want you all to read lines 11 through 15. It says 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. And we are taking all of the authority away from State 
legislatures to do that.
    I mean, appreciate the gentleman giving me the time, but I 
swear I can't say anything more. It's just outrageous.
    Chairman Sensenbrenner. Does the gentleman from Virginia--
--
    Mr. Scott. I yield back.
    Chairman Sensenbrenner. Okay; the question is on the 
amendment offered by the gentleman from North Carolina in the 
second degree to the Keller substitute.
    Those in favor will say aye.
    Opposed, no.
    The ayes appear to have it, the ayes have it, and the 
amendment is agreed to.
    Are there further amendments?
    Mr. Watt. Mr. Chairman.
    The gentleman from North Carolina, Mr. Watt.
    Mr. Watt. I have an amendment at the desk, Watt 01.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment to the amendment in the nature of a 
substitute to H.R. 554, offered by Mr. Watt. Strike Section 
3(b).
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    [The amendment follows:]
    
    
    Mr. Watt. Thank you, Mr. Chairman. I will not take 5 
minutes.
    All this does is strike the retroactivity provisions of the 
bill and apply it prospectively only, and I have made this 
argument before. I don't think we ought to--I guess the Supreme 
Court has ruled that you can, and I concede that, but I don't 
think you ought to change the rules in the middle of somebody's 
litigation and make these laws retroactively apply, and I hope 
my colleagues will support the amendment.
    Thank you.
    Chairman Sensenbrenner. Does the gentleman yield back?
    The gentleman from Florida, Mr. Keller.
    Mr. Keller. Thank you, Mr. Chairman.
    Again, I respect the argument, understand it. I'm going to 
have to reluctantly oppose it. This is the same argument and 
amendment that was defeated on the House floor by a vote of 164 
to 249.
    Mr. Watt. Could I get my friend to yield to me just for a 
second?
    Mr. Keller. Yes.
    Mr. Watt. I appreciate the gentleman yielding. I just 
wanted to point out to him that one of the laws that would be 
undermined here is the Florida cheeseburger law, which applies 
prospectively, not retrospectively.
    Mr. Keller. I thank the gentleman for yielding, reclaiming 
my time. Actually, I don't think Florida would be impacted, 
because we don't have any pending cases in Florida right now.
    But just in brief, why we are going to oppose this: number 
one, it is allowed under Supreme Court precedent to apply 
retroactively if it is pursuant to an economic policy. Number 
two--there are three reasons. Number two, I am concerned that 
if this amendment passed, all that would happen is that 
hundreds of additional cases would be filed right before the 
enactment of the act, because that's what happened in Texas and 
Mississippi when recently enacted legal reforms that did not 
preclude pending cases were passed. And third, the suits should 
be dismissed just substantively, and for these reasons, I ask 
my colleagues to oppose it.
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. Does the gentleman yield back?
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Mr. Chairman, I support the amendment, because 
it applies to cases where you have tried your case, you've won 
your case. It could even be on a frivolous appeal in violation 
of rule 11 just sitting there on appeal, and if this thing 
passes, all of a sudden, you've lost your case. That's not 
right, and the amendment ought to be adopted.
    Chairman Sensenbrenner. The gentleman yield back?
    Mr. Scott. Yes.
    Chairman Sensenbrenner.
    The question is on the amendment in the second degree 
offered by the gentleman from North Carolina, Mr. Watt.
    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. Scott. Mr. Chairman, I have an amendment at the desk, 
Watt 03.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment to the amendment in the nature of a 
substitute to H.R. 554, offered by Mr. Watt. Section 3(e), page 
4, line 17, after remedies----
    Mr. Watt. Mr. Chairman, I ask unanimous consent the 
amendment be considered as read.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. Without objection, so ordered.
    The gentleman is recognized for 5 minutes.
    Mr. Watt. Mr. Chairman, this amendment responds to what I 
hope is just hasty draftsmanship of the substitute. While 
requiring in section 3(b) that a judge immediately dismiss 
automatically any action covered by the bill, the bill 
repeatedly makes reference to a motion to dismiss by the 
parties in the very next section.
    Because judges are increasingly an endangered species in 
this body, my amendment provides protection by barring any 
efforts by litigants, judicial boards, or Congress to punish 
judges. Under this amendment, a deliberative judge who, for 
example, decides to hear argument on a motion to dismiss rather 
than immediately sua sponte, as the bill would say, dismisses 
an action, he or she believes meets the definition of a 
qualified civil liability action under this bill would be 
immune from a sanction under this bill, under the amendment.
    So notwithstanding the rule of construction section of this 
bill and given the obvious discrepancy implicit in the 
sections, I believe it's necessary to make explicit that a 
judge who fails to act under one section while acting under the 
other sections should not be burdened with the expense and 
embarrassment of defending charges of misconduct or risking 
other sanctions. So I would hope my colleagues would make this 
clarification. This is not a revision. I hope it is just an 
oversight.
    I yield back.
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Keller.
    Mr. Keller. Thank you, Mr. Chairman.
    This is the first time I have seen this amendment, but the 
gist of the section he is seeking to amend, the rule of 
construction, no provision of this act shall be construed to 
create a public or private cause of action or remedy is just 
that. We don't want people thinking that this is something 
other than what it is, and that is a narrow bill designed to 
prevent litigation from arising from obesity or weight gain 
claims from eating lawful products. And so, we don't want 
people to think just because something is not covered here that 
all of a sudden, that is a legitimate type of lawsuit that can 
be filed.
    Now, with respect to his amendment, it seeks to essentially 
say that any disciplinary or adverse action against a judge who 
delays or takes or fails to take action in accordance with 
this--I'm not sure what it's trying to do. I guess immunize a 
judge from any responsibility if he fails to dismiss a claim 
pursuant to section 3(b), and I don't know if that's necessary. 
If a claim is not dismissed, and it should be dismissed, once 
the case is done, there is always an appellate right to remedy 
that.
    So based on my understanding of it, I have no choice but to 
oppose the amendment.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from North Carolina, Mr. Watt.
    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, 
Watt 08.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment to the amendment in the nature of a 
substitute to H.R. 554, offered by Mr. Watt. Section 3(b), page 
2, line 23, after----
    Mr. Watt. Mr. Chairman, I ask unanimous consent that the 
amendment be considered as read.
    Chairman Sensenbrenner. Without objection, so ordered.
    The gentleman is recognized for 5 minutes.
    [The amendment follows:]
    
    
    Mr. Watt. Thank you, Mr. Chairman.
    This amendment seeks to impose some equity into the 
immediate dismissals mandated under this bill. Under the bill, 
any lawsuit, no matter where it is in the process: in trial, on 
appeal, in settlement negotiations, before a jury, settled, or 
in postjudgment proceedings must be dismissed. Litigants who 
have invested resources and relied on the law as it existed 
should not be punished for their reliance.
    To bar lawsuits at an advanced stage in the litigation 
process is a waste of judicial economy and undermines public 
confidence in our legal system. This amendment responds to this 
injustice by allowing cases in which a judgment has been 
entered or a settlement reached and signed to proceed. In those 
actions, there are some reasonable expectations: someone has 
won or lost, or the parties have reached some finality among 
themselves, and there is no reason to be requiring that those 
lawsuits be dismissed. No purpose is served by undoing a valid 
judicial determination by legislation, and I urge my colleagues 
to support the amendment.
    Chairman Sensenbrenner. The gentleman from Florida.
    Mr. Watt. I yield back.
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Keller.
    Mr. Keller. Mr. Chairman, I won't take any time. I've 
already explained why the dismissal of pending actions is 
there. This amendment is unnecessary. Who cares if a case is 
dismissed if you've already settled it and got your money? So I 
ask that my colleagues vote no.
    Chairman Sensenbrenner. The question is on the----
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. I didn't understand--who cares if they've 
already settled--move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized.
    Mr. Scott. The question of who cares about people who have 
settled a case, if they have settled it, the settlement ought 
to go through, not dismissed retroactively notwithstanding the 
settlement. Even if they have gotten their money, they can get 
it back. Under this, the case is dismissed.
    I yield to the gentleman from North Carolina.
    Mr. Watt. Or if they've settled a case, and they haven't 
gotten the money, you don't care about them either, I guess. I 
mean, that is pretty cold and callous of a Judiciary Committee 
of Congress to be saying that to people. I mean, give us a 
break.
    Chairman Sensenbrenner. The question is on the amendment in 
the second degree offered by the gentleman from North Carolina, 
Mr. Watt.
    Those in favor will say aye.
    Those opposed, no.
    The noes appear to have it. The noes have it.
    Mr. Watt. I think I want a recorded vote on this.
    Chairman Sensenbrenner. Okay; a recorded vote on the Watt 
Amendment 08 is requested. Those in favor will, as your name is 
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. No.
    The Clerk. Mr. Coble, no.
    Mr. Smith?
    Mr. Smith of Texas. 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. Lungren?
    Mr. Lungren. Pass.
    The Clerk. Mr. Lungren, pass.
    Mr. Jenkins?
    Mr. Jenkins. Pass.
    The Clerk. Mr. Jenkins, pass.
    Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Mr. Bachus?
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no.
    Mr. Inglis?
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no.
    Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Mr. Green?
    [No response.]
    The Clerk. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no.
    Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, 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. Feeney?
    [No response.]
    The Clerk. Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no.
    Mr. Gohmert?
    [No response.]
    The Clerk. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye.
    Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    [No response.]
    The Clerk. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye.
    Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye.
    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. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye.
    Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye.
    Mr. Smith?
    [No response.]
    The Clerk. Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye.
    Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members who wish to cast or change 
their votes.
    If not, the Clerk will report.
    The gentleman from Tennessee, Mr. Jenkins.
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Lungren.
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no.
    Chairman Sensenbrenner. The Clerk will report.
    The Clerk. Mr. Chairman, there are 8 ayes and 16 noes.
    Chairman Sensenbrenner. And the amendment in the second 
degree is not agreed to.
    Are there further amendments?
    Mr. Watt. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Watt.
    Mr. Watt. Mr. Chairman, this will be the final one, 06, 
Watt 06.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    Mr. Watt. My final one. I'm speaking for myself.
    The Clerk. Amendment to the amendment in the nature of a 
substitute to H.R. 554, offered by Mr. Watt. Strike Section 
3(d).
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    [The amendment follows:]
    
    
    Mr. Watt. Thank you, Mr. Chairman.
    The bill identifies three exceptions to a qualified civil 
liability action otherwise barred by the bill. A plaintiff may 
bring an action, one, for breach of express contract or express 
warranty, provided the action is not based on the plaintiff's 
weight gain or obesity or health conditions caused thereby, or 
two, against a manufacturer or seller if they knowingly violate 
a relevant statute, the plaintiff relied upon the violation, 
and the violation proximately caused the injury complained of, 
and three, under the Federal Trade Commission Act or the 
Federal Food, Drug, and Commerce Act.
    The exceptions provided are extremely narrow, and this 
amendment seeks to ensure that the suits allowed under the bill 
are not discouraged by a heightened pleading requirement, 
therefore effectively eliminating all lawsuits against and 
accountability of the food industry. The heightened pleading 
requirement is counter to notice pleading and will take us back 
to the days when technicalities resulted in the dismissal of 
many meritorious lawsuits.
    This provision also demonstrates a complete disregard for 
State procedural regimes governing pleading practice in State 
courts. It is disingenuous, in my opinion, to provide 
exceptions to prohibited actions while saddling those 
exceptions with virtually insurmountable barriers to initiating 
the claims that you have accepted. Moreover, there is 
absolutely nothing in the findings in this bill that suggests 
that these claims have been abused.
    If the goal of this bill is not to provide a blanket 
immunity for the food industry, then, this amendment should be 
noncontroversial and supported, and I would ask my colleagues 
to support the amendment to preserve standard pleading 
requirements for the lawsuits that are still available after 
this bill passes.
    I yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Keller.
    Mr. Keller. Thank you, Mr. Chairman.
    I am going to oppose the amendment, and I'll tell you why. 
This provision for the plaintiff to just specifically tell us 
your allegation saves the time and money of all litigants, as 
it provides the court with crucial information early in the 
proceedings in which to determine whether the case can go 
forward. On April of this year, the Supreme Court made clear 
that those filing a lawsuit can be made by Congress to plead 
their complaint with specificity. Dura Pharmaceuticals v. 
Broudo. And Justice Breyer stated that it should not prove 
burdensome for a plaintiff who has suffered an economic loss to 
provide a defendant with some indication of the loss and the 
causal connection that the plaintiff has in mind.
    So I would oppose the amendment and yield back the balance 
of my time.
    Chairman Sensenbrenner. The question is on agreeing to Watt 
Amendment No. 06 in the second degree.
    Those in favor will say aye.
    Those opposed, no.
    The noes 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 Watt Amendment 06 in the second degree 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. No.
    The Clerk. Mr. Coble, no.
    Mr. Smith?
    Mr. Smith of Texas. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    [No response.]
    The Clerk. Mr. Lungren?
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no.
    Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Mr. Green?
    [No response.]
    The Clerk. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no.
    Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, 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. Feeney?
    [No response.]
    The Clerk. Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no.
    Mr. Gohmert?
    [No response.]
    The Clerk. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye.
    Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    [No response.]
    The Clerk. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye.
    Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye.
    Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff.?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye.
    Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye.
    Mr. Smith?
    [No response.]
    The Clerk. Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye.
    Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members in the chamber who wish to 
cast or change their vote.
    The gentleman from Massachusetts, Mr. Meehan.
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye.
    Chairman Sensenbrenner. The gentleman from South Carolina, 
Mr. Inglis.
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no.
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot.
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their votes.
    If not, the Clerk will report.
    The Clerk. Mr. Chairman, there are 8 ayes and 15 noes.
    Chairman Sensenbrenner. And the amendment in the second 
degree is not agreed to.
    Are there further amendments?
    Mr. Scott. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    I have an amendment at the desk.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    Mr. Scott. The one that says 009 at the end of the bill.
    The Clerk. Amendment to the amendment in the nature of a 
substitute to H.R. 554, offered by Mr. Scott of Virginia. At 
the end of the bill, add the following new section: Section, 
state consumer protection actions. Notwithstanding any other 
provision to the contrary in this act, this act does not apply 
to an action brought by a State agency to enforce----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentleman from Virginia is 
recognized for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, if we take up this legislation and decide 
that we are going to try to some cases instead of letting them 
be tried in court, we ought to at least limit that to the fast 
food rhetoric that we've heard. This bill, in fact, covers not 
only fast food lawsuits but also litigation involving consumer 
protection when obesity may be one of the elements of the case.
    Now, every single State has laws on the books to protect 
its consumers. Each State has laws to protect consumers from 
misleading practices, and each attorney general has the power 
to enforce those laws. But unfortunately, as written, the bill 
will prevent State attorneys general from enforcing those laws. 
It will not just stop the individual fast food lawsuits that my 
colleagues have been discussing, but because a person who may 
be a plaintiff is defined in section 4(3) of the bill to 
include governmental entities, it will prevent States from 
getting injunctions, cease and desist orders, or imposing fines 
against those who endanger consumers.
    The exceptions for knowing violation is not enough. State 
deceptive practices are just the like the Federal Trade 
Commission Act. They allow civil enforcement actions whether or 
not the defendant willfully or knowingly violated the law. In 
fact, food labeling and deceptive practices have often exacted 
strict liability, that is, that the Government can get an 
injunction whether or not a person intentionally or knowingly 
was in violation.
    Mr. Chairman, my State of Virginia has a consumer 
protection act. It prohibits, and I quote, representing that 
foods and services have characteristics, ingredients, uses, 
benefits, or qualities that they do not have or any other 
conduct which similarly creates a likelihood of confusion or 
misunderstanding. Now, a court may order an injunction or 
restitution to injured parties even if the violation was 
unintentional.
    And in fact, Virginia is not alone. At least 12 other 
States have specifically adopted the Uniform Deceptive Trade 
Practices Act, section 3, which says that intentional deceptive 
action is not necessary to get the injunction, and at least 23 
other States have similar standards.
    So, Mr. Chairman, my amendment that I present today will 
fix the problem. It will ensure that attorneys general and 
State agencies can put an end to mislabeling, deceptive 
practices, false advertising and other consumer fraud within 
their borders of the State. Whatever we think of the fast food 
suits, please do not prohibit attorneys general from protecting 
their citizens.
    Mr. Conyers. Would the gentleman yield?
    Mr. Scott. I yield to the gentleman from Michigan.
    Mr. Conyers. I merely want to indicate my strong support 
for this amendment. This may, in many respects, be again the 
key amendment to this bill in which we at least save the 
attorney general from being precluded from doing his job as we 
move with this Federalization of local laws, and I thank the 
gentleman again for his contribution. I remember he brought 
this measure up the last time as well.
    Thank you.
    Mr. Scott. I yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Keller.
    Mr. Keller. Thank you, Mr. Chairman.
    I thank the gentleman for his amendment. Same arguments 
were advanced for and against this amendment on the House 
floor, and the amendment failed by a vote of 241 to 177.
    This bill already precludes lawsuits in which the injury 
claimed is obesity and weight gain. There are no State consumer 
protection laws that allow a State agency to sue for damages 
because someone got fat from eating too much. There are very 
vague State consumer protection laws such as the one in New 
York under which the claim was provided; it just says--this was 
allowed to go forward: deceptive acts or practices in the 
conduct of any business, trade or commerce.
    That is pretty vague, and I don't want to create a 
situation where State attorneys general go around suing the 
food industry for obesity-related costs just like they went 
after the tobacco industry for $246 billion. If there is some 
meritorious claim that can be brought, they are allowed under 
this action to do so if they can show that a Federal statute 
dealing with marketing, advertisement or labeling has been 
violated, and they plead that a person relied on those 
violations and that was the proximate cause of their weight 
gain.
    And so, I think the statute is best as it is, and this 
would unnecessarily encourage additional litigation of the type 
we don't want, and I would urge my colleagues to vote no.
    Chairman Sensenbrenner. Does the gentleman yield back?
    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. It is at these times that I most miss 
Representative Barney Frank on this Committee, because he would 
always say if you don't want to add something, you make the 
argument that it is redundant.
    If this does not do any harm, if there are no State laws 
that deal with this, I don't know what harm adding this section 
at the end of the bill would do. So I'm certainly not persuaded 
that that is a reason not to put the provision in there. This 
seems clearly to define a person as, and this is on page 5, 
line 8, including any governmental entity. I would think the 
attorney general would be a governmental entity, so if we are 
going to protect the rights of attorneys general to proceed, I 
think we need this provision.
    I will yield to Mr. Scott.
    Mr. Scott. I thank the gentleman for yielding.
    I also want to add that it's not only damages that are 
precluded. On page 5, line 19, it says damages, penalties, 
declaratory judgment, injunctive or declaration relief, 
restitution or other relief are all prohibited that the 
attorney general can't do if this bill passes without the 
amendment. I would hope that we would allow the attorney 
general to enforce the State laws.
    Chairman Sensenbrenner. The question is on the second 
degree amendment offered by the gentleman from Virginia, Mr. 
Scott.
    Those in favor will say aye.
    Opposed, no.
    The noes appear to have it.
    A recorded vote is requested. Those in favor of the Scott 
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. No.
    The Clerk. Mr. Coble, no.
    Mr. Smith?
    Mr. Smith of Texas. No.
    The Clerk. Mr. Smith, no.
    Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    [No response.]
    The Clerk. Mr. Lungren?
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no.
    Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no.
    Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Mr. Green?
    [No response.]
    The Clerk. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no.
    Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, 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. Feeney?
    [No response.]
    The Clerk. Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no.
    Mr. Gohmert?
    [No response.]
    The Clerk. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye.
    Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    [No response.]
    The Clerk. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye.
    Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye.
    Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye.
    Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye.
    Mr. Smith?
    [No response.]
    The Clerk. Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye.
    Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members who wish to cast or change 
their vote.
    The gentleman from Massachusetts, Mr. Meehan.
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye.
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot.
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote.
    If not, the Clerk will report.
    The gentleman from Florida, Mr. Feeney.
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote?
    The Clerk will report again.
    The Clerk. Mr. Chairman, there are 8 ayes and 16 noes.
    Chairman Sensenbrenner. And the amendment in the second 
degree is not agreed to.
    Are there further amendments?
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. Thank you, Mr. Chairman. I have an amendment at 
the desk.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment to the amendment in the nature of a 
substitute to H.R. 554, offered by Mr. Scott of Virginia. On 
page 6, strike lines 17 to 25, and on page 7----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read, and the gentleman is recognized for 5 
minutes.
    [The amendment follows:]
    
    
    Mr. Scott. Mr. Chairman, this amendment 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 violated the FDA standards and caused 
obesity. However, that leaves a loophole and allows protection 
for those manufacturers who did not know but should have known 
that their products in fact violated FDA standards.
    If they didn't know, this bill gives them immunity from 
being held responsible. One example, Mr. Chairman, a Florida 
company sold ice cream as, quote, reduced fat ice cream when, 
in fact, it had triple the calories and more than double the 
carbohydrates indicated on the label. The product had simply 
been mislabeled. The product had been on the market for years. 
The consumers were the ones who were responsible the correct 
labeling information forward, and it was not due to the 
diligence of the company. The company was negligent in 
mislabeling the ice cream and should not be protected in such a 
case.
    These cases should not be protected by the legislation. 
Somebody ought to be able to bring the suit. We have kind of 
made it more difficult for the attorneys general, but we should 
not allow these people to violate FDA standards and get away 
just by pleading ignorance. My amendment should hold people 
responsible for negligent behavior and violation of FDA 
standards.
    I encourage my colleagues to support the amendment. I yield 
back.
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Keller.
    Mr. Keller. I thank the Chairman.
    Again, regarding the intentional versus negligently, this 
is something that was defeated on the House floor by a voice 
vote. The knowing standard in this bill is exactly the same 
standard that we have in the H.R. 1036, the ``Protection of 
Lawful Commerce in Arms Act,'' that overwhelmingly passed the 
House in a bipartisan fashion. Anyone who voted for H.R. 1036 
last Congress and who votes for this amendment will be voting 
for stronger protections for firearm manufacturers than those 
in the food industry, the largest private sector employer.
    The second problem with this amendment, it takes out the 
language that I have that talks about the requirement that 
someone say that he relied upon that representation, and that 
was the cause of the weight gain. And so, reliance is a 
critical element and important to weed out the frivolous 
claims.
    So I would urge my colleagues to vote no and yield back.
    Chairman Sensenbrenner. The question is on agreeing to the 
amendment in the second degree offered by the gentleman from 
Virginia, Mr. Scott.
    Those in favor will say aye.
    Opposed, no.
    The noes appear to have it. The noes have it. And the 
amendment is not agreed to.
    Are there further amendments?
    Ms. Jackson Lee. I have an amendment at the desk.
    Chairman Sensenbrenner. The gentlewoman from Texas has an 
amendment at the desk.
    The Clerk will report the amendment.
    Ms. Jackson Lee. 010.
    The Clerk. Mr. Chairman, I have a 019.
    Ms. Jackson Lee. 010. Let me look. Let me withdraw right 
now.
    Thank you.
    Chairman Sensenbrenner. Are there further amendments?
    There are no further amendments.
    The question is on the amendment in the nature of a 
substitute as amended, offered by the gentleman from Florida, 
Mr. Keller.
    Those in favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it. The amendment 
in the nature of a substitute as amended is agreed to.
    The question now occurs on the motion to report the bill 
H.R. 554 favorably as amended. A reporting quorum is present.
    Those in favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it, and the 
motion to report favorably is agreed to.
    Mr. Conyers. Record, yes.
    Chairman Sensenbrenner. Record vote is requested. Those in 
favor of reporting the bill H.R. 554 favorably as amended 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?
    [No response.]
    The Clerk. Mr. Smith?
    Mr. Smith of Texas. Aye.
    The Clerk. Mr. Smith, aye.
    Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye.
    Mr. Lungren?
    Mr. Lungren. Aye.
    The Clerk. Mr. Lungren, aye.
    Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye.
    Mr. Cannon?
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye.
    Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    Mr. Inglis. Aye.
    The Clerk. Mr. Inglis, aye.
    Mr. Hostettler?
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye.
    Mr. Green?
    [No response.]
    The Clerk. Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye.
    Mr. Issa?
    Mr. Issa. Aye.
    The Clerk. Mr. Issa, aye.
    Mr. Flake?
    Mr. Flake. Aye.
    The Clerk. Mr. Flake, aye.
    Mr. Pence?
    Mr. Pence. Aye.
    The Clerk. Mr. Pence, aye.
    Mr. Forbes?
    [No response.]
    The Clerk. Mr. King?
    Mr. King. Aye.
    The Clerk. Mr. King, aye.
    Mr. Feeney?
    Mr. Feeney. Yes.
    The Clerk. Mr. Feeney, aye.
    Mr. Franks?
    Mr. Franks. Aye.
    The Clerk. Mr. Franks, aye.
    Mr. Gohmert?
    [No response.]
    The Clerk. Mr. Conyers?
    Mr. Conyers. No.
    The Clerk. Mr. Conyers, no.
    Mr. Berman.
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    [No response.]
    The Clerk. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no.
    Mr. Watt?
    Mr. Watt. No.
    The Clerk. Mr. Watt, no.
    Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    Ms. Jackson Lee. No.
    The Clerk. Ms. Jackson Lee, no.
    Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    Mr. Meehan. No.
    The Clerk. Mr. Meehan, no.
    Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    Mr. Schiff. No.
    The Clerk. Mr. Schiff, no.
    Ms. Sanchez?
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez, no.
    Mr. Smith?
    [No response.]
    The Clerk. Mr. Van Hollen?
    Mr. Van Hollen. No.
    The Clerk. Mr. Van Hollen, no.
    Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote.
    The gentleman from North Carolina, Mr. Coble.
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote.
    If not, the Clerk will report.
    The Clerk. Mr. Chairman, there are 16 ayes and 8 noes.
    Chairman Sensenbrenner. And 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 amendments adopted here today.
    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 House rules in which to submit 
additional dissenting, supplemental, or minority views.
    The Chair would like to thank the Members and staff for 
their patience. We have completed a very ambitious agenda 
today. There will be no markup tomorrow because the agenda has 
been completed, and the Committee stands adjourned.
    [Whereupon, at 3:43 p.m., the Committee was adjourned.]

                            ADDITIONAL VIEWS

    Mr. Chairman, I would like to submit for the record the 
votes I would have made had I not been unavoidably absent from 
the markup proceeding on H.R. 554 held on May 25, 2005.
    On rollcall #12, the Watt Amendment #2 to H.R. 554 I would 
have voted No.
    On rollcall #13, the Watt Amendment #8 to H.R. 554 I would 
have voted No.
    On rollcall #14, the Watt Amendment #6 to H.R. 554 I would 
have voted No.
    On rollcall #15, the Scott Amendment #009 to H.R. 554 I 
would have voted No.
    On rollcall #16, the Motion to Report H.R. 554, as amended 
by the Amendment in the Nature of a Substitute, as amended I 
would have voted Aye.

                                   Mark Green.

                            DISSENTING VIEWS

    We oppose H.R. 554 because there are far preferable ways of 
responding to this issue than by approving a one-size-fits-all 
Federal law that would preempt all 50 states. In the absence of 
an adequate record, the legislation is drafted so broadly that 
it would immunize defendants for negligent and reckless 
behavior, including mislabeling of food products. The 
legislation also applies retroactively for the benefit of a 
single special interest--the fast food industry--in a manner 
that is wholly unfair and sets a precedent that undermines 
state and Federal consumer protection regimes.\1\ For the 
reasons set out below, we respectfully dissent.
---------------------------------------------------------------------------
    \1\ H.R. 554 is opposed by a number of organizations, including the 
Consumers Union, Public Citizen, the Alliance for Justice and the 
Center for Science in the Public Interest. See Letter from Sally 
Greenberg, Senior Product Safety Counsel, and Chanelle Hardy, Esther 
Peterson Fellow, Consumers Union (April 27, 2005) (on file with the 
Democratic staff of the House Judiciary Committee); Letter from Frank 
Clemente, Director, Public Citizen Congress Watch (April 27, 2005) (on 
file with the Democratic staff of the House Judiciary Committee); 
Letter from Nan Aron, President, Alliance for Justice (May 24, 2005) 
(on file with the Democratic staff of the House Judiciary Committee); 
and Letter form Michael F. Jacobson, Executive Director, Center for 
Science in the Public Interest (April 28, 2005)(on file with the 
Democratic staff of the House Judiciary Committee).
---------------------------------------------------------------------------

               Background and Description of Legislation

    In August 2002, lawyers in New York filed suit against 
McDonald's on behalf of two minor children claiming that the 
fast-food restaurant bore some liability for the obesity and 
health problems of the plaintiffs. The deluge of media reports 
that followed were often critical of the case. In January 2003, 
Judge Robert Sweet dismissed the action in its entirety, but 
granted plaintiffs the right to replead with greater 
specificity its negligence claims against the food giant. 
Contrary to the media reports, deriding the case, Judge Sweet 
recognized several theories upon which McDonald's could indeed 
be liable to the plaintiffs for the harmful effects of its 
food.\2\ That case was ultimately dismissed for a second time 
in September 2003. However, on January 25, 2005, the Second 
Circuit Court of Appeals remanded the case for further 
proceedings, holding that the district court erred because it 
misinterpreted New York's consumer law, which makes it illegal 
to commit deceptive acts or practices without requiring proof 
of actual reliance.\3\
---------------------------------------------------------------------------
    \2\ See, e.g., 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.'')
    \3\ Pelman v. McDonald's Corp., 396 F.3d 508 (2005).
---------------------------------------------------------------------------
    H.R. 554 prohibits an otherwise harmed ``person'' from 
bringing a ``qualified civil liability action in state or 
Federal court.'' \4\ 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 conditions.\5\ 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. 554.\6\ The ban would operate 
retroactively, terminating any and all pending litigation at 
the time of passage.\7\
---------------------------------------------------------------------------
    \4\ H.R. 554, 107th Cong. Sec. 4, part 5 (2003).
    \5\ Id. at Sec. 4, part 5.
    \6\ Id. at Sec. 3(a).
    \7\ 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. 554 creates three narrow exceptions where a weight-
related action would be permitted: (1) in an action for breach 
of express contract or express warranty; (2) in a case where 
the respondent ``knowingly'' violated a State or Federal law 
with the intention for a person to rely on that violation, that 
person then individually and justifiably relied on that 
violation, and that their reliance was the proximate cause of 
the weight-related injury; or (3) claims arising from the sale 
of an adulterated product.\8\ 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.\9\
---------------------------------------------------------------------------
    \8\ Id. at Sec. 4, part 5.
    \9\ Id. at Sec. 3(d).
---------------------------------------------------------------------------

    I. HR. 554 WOULD PERMIT NEGLIGENT AND RECKLESS ACTIONS BY FOOD 
                               PRODUCERS

    H.R. 554 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.\10\ 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 intent to violate the law, H.R. 554 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.\11\
---------------------------------------------------------------------------
    \10\ While the bill permits legal actions when the defendant has 
violated a state or Federal law, the bill permits certain lawsuits in 
situations where the law is broken ``knowingly.'' Sec. 4, part 5(A).
    \11\ To mitigate this problem, Representative Scott offered an 
amendment to strike ``knowingly'' 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. 
The amendment was defeated by a voice vote.
---------------------------------------------------------------------------
    It is not difficult 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.\12\ After the mistake 
became public, two dieters filed a class action suit \13\ under 
Florida's Unfair Trade and Deceptive Practices Act, asserting 
they were misled by the label's promises.\14\ In September 
2003, DeConna settled the case.\15\ In addition to being 
prohibited from using the misleading label, the company agreed 
to periodically verify the accuracy of its labeling 
information.\16\ Rather than receive a financial windfall, the 
plaintiffs were merely reimbursed for the money they had 
expended. Had H.R. 554 been law in 2001, the action would 
likely have been barred under the bill and there would have 
been no remedy for the deceptive practice.
---------------------------------------------------------------------------
    \12\ Mitch Lipka, Inside Scoop: Ice Cream Far From Dieter's Dream, 
South Florida Sun-Sentinel, June 17, 2001.
    \13\ Cohen v. DeConnna Ice Cream Co., No. 01-010780, (Fla. Cir. 
Ct., Broward Cty., Dec. 20, 2001) (granting class action status).
    \14\ Fla. Stat. Ann. Sec. 501.200 et seq. (West 2003).
    \15\ 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, http://www.miami.com/
mld/miamiherald/business/6871215.htm.
    \16\ Id.
---------------------------------------------------------------------------
    H.R. 554 would have also prevented private litigation 
relating to KFC's recent and much criticized advertising 
campaign. During the fall of 2003, 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.\17\ 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 
undermined the ``credibility not just of KFC but of the entire 
marketing industry,'' \18\ 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.\19\ Again, 
had H.R. 554 been law, it is unlikely any form of private 
litigation against KFC would have been viable.
---------------------------------------------------------------------------
    \17\ 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.
    \18\ 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 part of a healthy diet merits special 
derision.'').
    \19\ Id. The FTC has not confirmed whether it will investigate 
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.\20\ As Representative Mel 
Watt stated during the markup debate when he unsuccessfully 
sought to delete this heightened pleading requirement, ``It is 
disingenuous, in my opinion, to provide exceptions to 
prohibited actions while saddling those exceptions with 
virtually insurmountable barriers to initiating the claims that 
you have accepted.'' 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.\21\
---------------------------------------------------------------------------
    \20\ See H.R. 554 Sec. 3(d).
    \21\ The Rules Enabling Act 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. See, e.g., 
28 U.S.C.A 2072 (1948).
---------------------------------------------------------------------------

 II. H.R. 554 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.\22\
---------------------------------------------------------------------------
    \22\ We would note that the following liability legislation enacted 
into law was not drafted to apply retroactively: The General Aviation 
Revitalization Act of 1994, Pub. L. No. 103-298, 108 Stat. 1552 (1994) 
(statute of limitations on suits against airline manufacturers); the 
Bill Emerson Good Samaritan Food Donation Act, Pub. L. No. 104-210, 110 
Stat. 3011 (1996) (limits the liability of those who donate food to a 
charity); the Volunteer Protection Act of 1997, Pub. L. No. 105-19, 111 
Stat. 218 (1997) (limits the liability of volunteers); Section 161 of 
the Amtrak Reform and Accountability Act of 1997, Pub. L. No. 105-134, 
111 Stat. 788 (1997) (limits punitive damages in railroad accidents); 
the Biomaterials Access Assurance Act of 1998, Pub. L. No. 105-230, 112 
Stat. 1519 (1998) (limits the liability of suppliers of raw materials 
and medical implant components); the Year 2000 Readiness and 
Responsibility Act, Pub. L. No. 106-37, 106 Stat. 185 (1999) (limits 
the liability of Y2K defendants); and Terrorism Risk Insurance Act of 
2002, Pub. L. No. 107-297, 116 Stat. 2322 (2002) (limits liability in 
terrorism-related cases).
---------------------------------------------------------------------------
    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 notes.
---------------------------------------------------------------------------
    Third, retroactive application of changes in the law flies 
not only in the face of fairness, but precedent as well. 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 an amendment offered by Mr. Scott 
which eliminated retroactivity and applied the bill's 
limitations to harm which occurred after the bill was passed 
into law.\24\
---------------------------------------------------------------------------
    \24\ H.R. Rep. No. 105-11 (1997).
---------------------------------------------------------------------------
    We also believe it is inadvisable for the Committee to pick 
and choose between industries for the establishment of 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. 554] 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.\25\
---------------------------------------------------------------------------
    \25\ 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 Mr. Watt offered an amendment seeking to delete the 
retroactivity provision,\26\ the Majority responded by 
expressing concern with the judiciary's case load and stating 
that hundreds of additional cases would be filed before the 
enactment of the legislation. This concern is clearly 
unfounded. The courts have demonstrated that they can very ably 
handle the number of matters which have raised these claims--
one lawsuit at this point in time.
---------------------------------------------------------------------------
    \26\ The Watt Amendment was defeated by a voice vote.
---------------------------------------------------------------------------

          III. H.R. 554 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.\27\ At the same time, sixteen states have enacted 
a statute limiting obesity lawsuits,\28\ while several other 
states are considering similar laws.\29\ 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.'' \30\
---------------------------------------------------------------------------
    \27\ See infra Section IV.
    \28\ The following states have enacted laws limiting obesity 
lawsuits: Arizona, 2004 Ariz. Sess. Law 67 (Chapter 67); Colorado, 2004 
Colo. Sess. Law 229, The Commonsense Consumption Act (Chapter 229); 
Florida, 2004 Fla. Law 88; Georgia, 2005 Ga. Laws 196; Idaho, 2004 
Idaho Sess. Laws 380, Commonsense Consumption Act; Illinois, 2004 Ill. 
Law 3981 (Public Act No. 93-848), Commonsense Consumption Act; Kansas, 
Governor signed lawsuit preemption legislation on April 15, 2005; 
Kentucky, Governor signed SB 103 into law on March 8, 2005; Louisiana, 
2003 La. Act 158; Michigan, 2004, Mich. Pub. Act 367; Missouri, 2004 
Mo. Law 537; North Dakota, Governor John Hoeven signs HB 1241 into law 
on March 31, 2005; Ohio, Governor signed SB 80 into law on January 6, 
2005; South Dakota, the Governor signed the Commonsense Consumption Act 
into law (HB1282) on March 9, 2004; Tennessee, 2004 Ten. Pub. Act 570; 
Utah, 2004 Utah Law 78, Chapter 27d; Washington, Wash. Law 139; 
Wyoming, Governor Dave Freudenthal signed HB 170 into law on February 
24, 2005.
    \29\ The following states are considering legislation: Connecticut, 
Minnesota, Nebraska, New Jersey, New York, North Carolina, Oklahoma, 
Oregon, Pennsylvania, Rhode Island, South Carolina, Texas, and 
Wisconsin.
    \30\ Representative Watt offered an amendment to limit the bill's 
applicability to Federal courts. It was defeated by a party line vote 
of 17-8.
---------------------------------------------------------------------------
    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 thicket 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.\31\
---------------------------------------------------------------------------
    \31\ 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.\32\
---------------------------------------------------------------------------
    \32\ 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. 554 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.\33\
---------------------------------------------------------------------------
    \33\ 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. 554 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.\34\ 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.\35\ This would be 
particularly true concerning matters of public health and 
safety of the nature implicated by H.R. 554.
---------------------------------------------------------------------------
    \34\ 529 U.S. 598 (2000).
    \35\ 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.\36\
---------------------------------------------------------------------------
    \36\ See Oreo Cookies Lawsuit Crumbles, CBSNews.com, (May 15, 2003) 
at http://www.cbsnews.com/stories/2003/05/13/health/main553619.shtml.

         LThe 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.\37\
---------------------------------------------------------------------------
    \37\ 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.\38\ 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.\39\
---------------------------------------------------------------------------
    \38\ Sherri Day, McDonald's Enlists Trainer to Help Sell Its New 
Meal, N.Y. Times, Sept. 16, 2003 at C4 (describing a new pilot program 
in Indiana).
    \39\ 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.\40\
---------------------------------------------------------------------------
    \40\ 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.\41\ This 
meant the defendant was able to avoid the expenses of a 
protracted trial.
---------------------------------------------------------------------------
    \41\ 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.'' \42\ 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.'' \43\ 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.\44\
---------------------------------------------------------------------------
    \42\ Fed. R. Civ. P. 11(b)(1).
    \43\ Id. at (b)(2). See also Rule 11(b)(3) which requires that 
``allegations and other factual contentions have evidentiary support.''
    \44\ 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. 554 is ill-conceived rush to judgment that would set a 
dangerous precedent. This legislation has been drafted in the 
absence of a single verdict against the food industry, and 
would preempt the laws in all 50 states. Its reach is so broad 
that negligent and reckless activity would be insulated from 
liability and cases protecting important consumer interest 
would be interrupted in the mid-stream of litigation. 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 are bound to 
arise in the ordinary course. We should not pass special 
interest legislation that panders to a single industry at the 
expense of our system of federalism.

         Description of Amendment Offered by Democratic Members

    During the markup eight amendments were offered by 
Democratic members, six by Mr. Watt and two by Mr. Scott:
1. Watt Amendment
    Description of Amendment: The amendment would strike, ``or 
state,'' in Section 3(a), limiting the bill's applicability to 
Federal courts.
    Vote on Amendment: The amendment was defeated by a party-
line vote of 17-8. Ayes: Representatives Conyers, Scott, Watt, 
Jackson Lee, Waters, Meehan, Schiff, Sanchez, Nays: 
Representatives Sensenbrenner, Coble, Smith, Chabot, Lungren, 
Jenkins, Cannon, Bachus, Inglis, Hostettler, Keller, Issa, 
Pence, King, Feeney, Franks, Gohmert.
2. Watt Amendment
    Description of Amendment: The amendment would strike the 
reference to ``State legislatures,'' in Section 2, p. 2, line 
12 of the Findings. The amendment was designed to highlight the 
preemptive nature of the legislation.
    Vote on Amendment: The amendment was approved by voice 
vote.
3. Watt Amendment
    Description of Amendment: The amendment would strike 
Section 3(b) which dismisses pending actions. The amendment was 
designed to strike the retroactive provisions of the bill and 
allow those cases currently in the court system to proceed.
    Vote on Amendment: The amendment was defeated by voice 
vote.
4. Watt Amendment
    Description of Amendment: This amendment would make the 
following change to the bill: in Section 3(e), p. 4, line 17, 
strike the period and add, ``, including any disciplinary or 
other adverse action against a judge who delays, takes or fails 
to take action in accordance with subsection (b) of this 
Section.'' This amendment was designed to ensure that a delay 
in taking action or failure to take action would not result in 
a charges of misconduct or other sanction against the presiding 
judge.
    Vote on Amendment: The amendment was defeated by voice 
vote.
5. Watt Amendment
    Description of Amendment: The amendment would make the 
following change to the amendment: in Section 3(b), p.2, line 
23, strike the period and add, ``, except where a settlement 
has been reached an signed by both parties or a judgment has 
been entered by the trail or appellate court.'' This amendment 
allows cases in which a judgement has been entered or a 
settlement reached and signed to proceed.
    Vote on Amendment: The amendment was defeated by a party-
line vote of 16-8. Ayes: Representatives Conyers, Scott, Watt, 
Jackson Lee, Meehan, Schiff, Sanchez, Van Hollen. Nays: 
Representatives Sensenbrenner, Coble, Smith, Chabot, Lungren, 
Jenkins, Cannon, Bachus, Inglis, Hostettler, Keller, Issa, 
Flake, Pence, King, Franks.
6. Watt Amendment
    Description of Amendment: The amendment would strike 
Section 3(d) which requires heighten pleadings on the complaint 
brought based on the consumption of a qualified product.
    Vote on Amendment: The amendment was defeated by a party-
line vote of 15-8. Ayes: Representatives Conyers, Scott, Watt, 
Jackson Lee, Meehan, Schiff, Sanchez, Van Hollen. Nays: 
Representatives Sensenbrenner, Coble, Smith, Chabot, Lungren, 
Jenkins, Cannon, Inglis, Hostettler, Keller, Issa, Flake, 
Pence, King, Franks.
7. Scott Amendment
    Description of Amendment: The amendment would exempt state 
law enforcement actions concerning mislabeling or other unfair 
and deceptive trade practices from the impact of the 
legislation.
    Vote on Amendment: The amendment was defeated by a party-
line vote, 16-8. Ayes: Representatives Conyers, Scott, Watt, 
Jackson Lee, Meehan, Schiff, Sanchez, Van Hollen. Nays: 
Representatives Sensenbrenner, Coble, Smith, Chabot, Lungren, 
Jenkins, Cannon, Inglis, Hostettler, Keller, Issa, Flake, 
Pence, King, Feeney, Franks.
8. Scott Amendment
    Description of Amendment: The amendment would make the 
following changes to the gill: strike lines 17-25 on page 6 and 
1-7 on page 7 and then insert on page 6, ``(ii) an action in 
which a manufacturer or seller of a qualified product violated 
a Federal or State statute applicable to the manufacturing, 
marketing, 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;'' allowing an action based on 
an allegation that a manufacturer or seller simply violated a 
Federal or State statute to be exempt. This amendment was 
designed to correct the bill by allowing a simple violation of 
Federal or State statute by manufacturer or seller to 
constitute a cause of action.
    Vote on Amendment: The amendment was defeated by voice 
vote.

                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Martin T. Meehan.
                                   William D. Delahunt.
                                   Robert Wexler.
                                   Linda T. Sanchez.
                                   Chris Van Hollen.

                                 
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