39–006 

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 

2 

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. 

3 

(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 

4 

1 Roger Parloff, ‘‘Is Fat the Next Tobacco?’’ Fortune (January 21, 2003). 

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

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 highcalorie food ‘‘for an ensuing heart attack’’ and that it would be 

‘‘nonsensical’’ to claim that a product can be defective under the 

5 

2Patterson v. Rohm Gesellschaft, 608 F. Supp. 1206, 1211–12 (N.D. Tex. 1985). 3Ganim v. Smith & Wesson Corp., No. X06 CV 990153198S, 1999 Conn. Super. LEXIS 3330 

at *14 (Conn. Super. Ct. Dec. 10, 1999). 4Marguerite Higgins, ‘‘Advocates Meet to Plan Big Mac Attack on Fat; Legal Assault on Fastfood Industry Will Follow Blueprint Used Against Tobacco Firms,’’ The Washington Times (June 

22, 2003) at A1. 5See 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). 6 Abraham Genauer, ‘‘Conference Highlights Assault on ‘Big Food,’ ’’ The Hill (June 11, 2003) 

at 36. 7The affidavit can be found at: http://www.phaionline.org/conference/affidavit.html (last visited March 5, 2004). 8The 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. 

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

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. 

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

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 

6 

10 Erin Duggan, ‘‘Tobacco-suit Tactics Now Target Fast Food,’’ Albany Times Union (April 6, 

2003) at A1. 11Daniel 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.’’). 12Walter Olson, ‘‘A Spanking for the Trial Lawyers,’’ The Wall Street Journal (May 23, 2003) 

at A10. 13David 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. 15See 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.’’). 16Pelman v. McDonald’s Corp., 396 F.3d 508, 510–11 (2d. Cir. 2005). 17See 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). 

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

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 

§ 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 § 349 does not require 

proof of actual reliance.’’ 16

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

7 

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. 19MSNBC, ‘‘Abrams Report’’ (January 23, 2003) (transcript). 20See 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.’’). 21The Manhattan Institute, Center for Legal Policy, Trial Lawyers Inc. (2003), available at 

http://www.triallawyersinc.com, at 2. 22See id., at 2, 6 (‘‘Significantly, these estimates exclude the tobacco settlements, most contract and securities litigations, and most punitive damages...’’). 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). 

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

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 CocaCola.’’ 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: 

[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

Frivolous litigation against the ‘‘fast food’’ industry, if allowed to 

proliferate, will lead to lawsuits against the food industry genVerDate Aug 04 2004 13:40 Jun 16, 2005 Jkt 039006 PO 00000 Frm 00007 Fmt 6659 Sfmt 6601 E:\HR\OC\HR130.XXX HR130
8 

24See 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.’’). 25See 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.’’). 26Marguerite Higgins, ‘‘Lawyers See Obese U.S. Ripe for Fat Lawsuits,’’ The Washington 

Times (September 20, 2004) at A4, A11 (emphasis added). 27Marguerite Higgins, ‘‘Anti-obesity Group Mulls Swell in Suits: Doctors Eyed for Legal Action,’’ The Washington Times (September 19, 2004) at A2. 28See Nutrition Labeling and Education Act, Pub. L. No. 101–535. 29See 21 U.S.C. § 343(q)(5)(A)(i)–(ii). 30See H.R. 554, Sec. 4(5)(B)(i). 31See H.R. 554, Sec. 4(5)(B)(iii). 32See H.R. 554, Sec. 3(e). 

erally, 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

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

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

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

9 

33Gallup 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). 34Gary Andres, ‘‘The Waistline Wars,’’ The Washington Times (April 20, 2005) at A19. 35Deloitte Consumer Business, ‘‘The Weight Debate,’’ (2004) at 3. 36 New York Times Co. v. Sullivan, 376 U.S. 254, 271 (1964) (quoting James Madison). 

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: 

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

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

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

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 eatVerDate Aug 04 2004 13:40 Jun 16, 2005 Jkt 039006 PO 00000 Frm 00009 Fmt 6659 Sfmt 6601 E:\HR\OC\HR130.XXX HR130
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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. 39Written 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. 40Susan Finn, The Washington Times (Letter to the Editor) (October 22, 2003) at A22. 

ing 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

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

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

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 

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41 ‘‘Round Figures,’’ The Wall Street Journal (editorial) (November 30, 2004) at A18. 42David 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). 43 Erin Duggan, ‘‘Tobacco-suit Tactics Now Target Fast Food,’’ Albany Times Union (April 6, 

2003) at A1. 44Philip K. Howard, The Collapse of the Common Good (New York: 2001) at 22–23. 45Philip K. Howard, ‘‘It’s No Fun Playing Torts,’’ Legal Times (November 15, 2004). 

yers to exploit the obesity epidemic—and encouraging Americans to 

blame their dietary excesses on someone else—isn’t going to make 

anyone healthier.’’ 41

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

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.’’ 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

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 freemarket commodity. Suing is the use of state power by one citizen 

against another.’’ 45

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 

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46 Hearsay: The Lawyer’s Column, The Washington Post (January 27, 2003) at E10. 47 ‘‘Food Fight,’’ CBS News ‘‘60 Minutes’’ (Australia) (September 15, 2002) (transcript). 48Philip K. Howard, The Collapse of the Common Good (New York: 2001) at 58. 49President’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). 50L.A. Sutherland, ‘‘Health Trends in US Adolescents Over the Past 20 Years,’’ Program No. 

708.7, Abstract 7714. 51See 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). 

tiffs. 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

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

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

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

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

13 

52Steven Millor, ‘‘Snack Foods Don’t Fatten Kids,’’ Fox News Channel (September 24, 2004). 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). 54See ‘‘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.’’). 

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

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

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. 

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 

14 

55Laura Bradford, ‘‘Fat Foods: Back In Court’’ TIME Online, Inside Business (August 3, 

2003). 56See 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.’’). 57See 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.’’). 58 ‘‘Food Fight,’’ CBS News ‘‘60 Minutes’’ (September 15, 2002) (transcript). 59 National Public Radio, ‘‘Fast Food on Trial’’ (8/8/02). 60Penelas v. Arms Technology Inc. et al., No. 3D00–113, dismissal affirmed (Fla. Dist. Ct. 

App., 3d Dist., Feb. 14, 2001). 61See Cincinnati v. Beretta U.S.A. Corp., No. A9902369, 1999 WL 809838 (Ohio Com. Pl. Oct. 

7, 1999) at *1. 

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

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

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

Mr. Banzhaf has also said, ‘‘if the legislatures won’t legislate, 

then the trial lawyers will litigate.’’ 59

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. 

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 

15 

62See 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.’’). 63Philip K. Howard, ‘‘Charity Case,’’ The Wall Street Journal (March 17, 2005). 64 517 U.S. 559, 571 (1996). 65 491 U.S. 324 (1989). 66 491 U.S. at 336–37 (citations omitted). 

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

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. 

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: 

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

James Madison, in Federalist No. 42, described the purpose of 

the Commerce Clause as follows: 

16 

67The Federalist Papers, Federalist No. 22 (Madison) at 267–68 (Clinton Rossiter ed., 1961). 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. 69See Sec. 3(c)(1). 70 ‘‘Fat Chance,’’ The Wall Street Journal (editorial) (February 1, 2005) at A12. 71See Sec. 3(c)(2). 72See H.R. 554, Sec. 3(d). 

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

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

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

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 

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gation 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. 

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 .........................................................................................................

18 

ROLLCALL NO. 1—Continued 

Ayes Nays Present 

Mr. Weiner .........................................................................................................

Mr. Schiff .......................................................................................................... X 

Ms. Sa ́nchez ...................................................................................................... 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. Sa ́nchez ...................................................................................................... X 

Mr. Smith (Washington) ....................................................................................

Mr. Van Hollen .................................................................................................. X 

Mr. Sensenbrenner, Chairman .......................................................................... X 

Total ................................................................................................ 8 16 

19 

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. Sa ́nchez ...................................................................................................... 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 .......................................................................................................

20 

ROLLCALL NO. 4—Continued 

Ayes Nays Present 

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. Sa ́nchez ...................................................................................................... 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 .........................................................................................................

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ROLLCALL NO. 5—Continued 

Ayes Nays Present 

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. Sa ́nchez ...................................................................................................... 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.’’

22 

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 privatesector 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. 

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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 nonparty 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. 

24 

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. 

25 

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:] 

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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 affiVerDate Aug 04 2004 13:40 Jun 16, 2005 Jkt 039006 PO 00000 Frm 00032 Fmt 6659 Sfmt 6601 E:\HR\OC\HR130.XXX HR130
33 

davits 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. 

34 

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. 

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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:] 

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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.’’

54 

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 


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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. 

56 

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? 

57 

[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. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, 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. 

58 

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. 


554C.eps
59 

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 associVerDate Aug 04 2004 13:40 Jun 16, 2005 Jkt 039006 PO 00000 Frm 00059 Fmt 6659 Sfmt 6601 E:\HR\OC\HR130.XXX HR130
60 

ated 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. 


554D.eps
61 

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:] 

62 

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 


554E.eps
63 

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. 


554F.eps
64 

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? 

65 

[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. 

66 

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. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, 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. 

67 

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 


554G.eps
68 

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. 

69 

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? 

70 

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. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, 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. 

71 

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. 


554H.eps
72 

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 

73 

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? 

74 

[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. 

75 

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. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, 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? 

76 

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 igVerDate Aug 04 2004 13:40 Jun 16, 2005 Jkt 039006 PO 00000 Frm 00076 Fmt 6659 Sfmt 6601 E:\HR\OC\HR130.XXX HR130

554I.eps
77 

norance. 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 

78 

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. 

79 

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. Sa ́nchez? 

Ms. SA ́ NCHEZ. No. 

The CLERK. Ms. Sa ́nchez, 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. 

80 

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.] 

(81) 

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. 

(82) 

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). 2See, 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.’’) 3Pelman v. McDonald’s Corp., 396 F.3d 508 (2005). 4 H.R. 554, 107th Cong. § 4, part 5 (2003). 

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. 

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

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 associaVerDate Aug 04 2004 21:53 Jun 16, 2005 Jkt 039006 PO 00001 Frm 00082 Fmt 6604 Sfmt 6604 E:\HR\OC\HR130.XXX HR130
83 

5 Id. at § 4, part 5. 6 Id. at § 3(a). 7 Id. at § 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 § 3(c). 8 Id. at § 4, part 5. 9 Id. at § 3(d). 10While 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.’’ § 4, part 

5(A). 11To 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. 

tion 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

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

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

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 

84 

12Mitch 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). 14FLA. STAT. ANN. § 501.200 et seq. (West 2003). 15Patrick 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. 17Press 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. 20See H.R. 554 § 3(d). 

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. 

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. 

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 

85 

21The 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). 22We 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). 23See infra Section IV and accompanying notes. 24 H.R. REP. NO. 105–11 (1997). 

provisions through the Rules Enabling Act procedure promulgated 

by Congress.21

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

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. 

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

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. 

86 

25Press 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. 26The Watt Amendment was defeated by a voice vote. 27See infra Section IV. 28The 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. 29The 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. 

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

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. 

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

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 

87 

31Product 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). 32Preemption 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). 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). 34 529 U.S. 598 (2000). 

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

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

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

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 traVerDate Aug 04 2004 13:40 Jun 16, 2005 Jkt 039006 PO 00000 Frm 00087 Fmt 6604 Sfmt 6604 E:\HR\OC\HR130.XXX HR130
88 

35 514 U.S. 549 (1995). 36See Oreo Cookies Lawsuit Crumbles, CBSNews.com, (May 15, 2003) at http:// 

www.cbsnews.com/stories/2003/05/13/health/main553619.shtml. 37Lauran Neergaard, FDA to force foods to reveal artery-clogging trans fat, ASSOCIATED PRESS, July 9, 2003. 38Sherri 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. 40David Barboza, Kraft Plans to Rethink Some Products to Fight Obesity, N.Y. TIMES, July 

2, 2003 at C6. 

ditionally 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. 

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

• The FDA issued requirements that food labels reveal the levels of trans fats. In doing so, the FDA estimated that merely 

revealing trans fat content on labels will save between 2,000 

and 5,600 lives a year, as people either would choose 

healthier foods or manufacturers alter their recipes to leave 

out the damaging ingredient.37

• McDonald’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

• Major 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

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 

89 

41Pelman v. McDonalds Corp., No. 02 Civ. 7821(RWS) (S.D.N.Y. Sept. 3, 2003), at 11. 42FED. 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). 

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. 

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

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: 

90 

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 partyline vote of 17–8. Ayes: Representatives Conyers, Scott, Watt, Jackson Lee, Waters, Meehan, Schiff, Sa ́nchez, 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 partyline vote of 16–8. Ayes: Representatives Conyers, Scott, Watt, Jackson Lee, Meehan, Schiff, Sa ́nchez, Van Hollen. Nays: Representatives Sensenbrenner, Coble, Smith, Chabot, Lungren, Jenkins, Cannon, Bachus, Inglis, Hostettler, Keller, Issa, Flake, Pence, King, 

Franks. 

91 

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 partyline vote of 15–8. Ayes: Representatives Conyers, Scott, Watt, Jackson Lee, Meehan, Schiff, Sa ́nchez, 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 partyline vote, 16–8. Ayes: Representatives Conyers, Scott, Watt, Jackson Lee, Meehan, Schiff, Sa ́nchez, 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. SA ́ NCHEZ. 

CHRIS VAN HOLLEN. 

Æ