I 

111TH CONGRESS 

1ST SESSION H. R. 812 

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. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 3, 2009 

Mr. BOREN (for himself and Mr. TIBERI) introduced the following bill; which 

was referred to the Committee on the Judiciary 

A BILL 

To prevent legislative and regulatory functions from being 

usurped by civil liability actions brought or continued 

against food manufacturers, marketers, distributors, advertisers, sellers, and trade associations for claims of 

injury relating to a person’s weight gain, obesity, or 

any health condition associated with weight gain or obesity. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Commonsense Con5 sumption Act of 2009’’. 


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1 SEC. 2. FINDINGS; PURPOSE. 

2 (a) FINDINGS.—Congress finds that— 

3 (1) the food and beverage industries are a sig4 nificant part of our national economy; 

5 (2) the activities of manufacturers and sellers 

6 of foods and beverages substantially affect interstate 

7 and foreign commerce; 

8 (3) a person’s weight gain, obesity, or a health 

9 condition associated with a person’s weight gain or 

10 obesity is based on a multitude of factors, including 

11 genetic factors and the lifestyle and physical fitness 

12 decisions of individuals, such that a person’s weight 

13 gain, obesity, or a health condition associated with 

14 a person’s weight gain or obesity cannot be attrib15 uted to the consumption of any specific food or bev16 erage; and 

17 (4) because fostering a culture of acceptance of 

18 personal responsibility is one of the most important 

19 ways to promote a healthier society, lawsuits seeking 

20 to blame individual food and beverage providers for 

21 a person’s weight gain, obesity, or a health condition 

22 associated with a person’s weight gain or obesity are 

23 not only legally frivolous and economically dam24 aging, but also harmful to a healthy America. 

25 (b) PURPOSE.—The purpose of this Act is to allow 

26 Congress, State legislatures, and regulatory agencies to 


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1 determine appropriate laws, rules, and regulations to ad2 dress the problems of weight gain, obesity, and health con3 ditions associated with weight gain or obesity. 

4 SEC. 3. PRESERVATION OF SEPARATION OF POWERS. 

5 (a) IN GENERAL.—A qualified civil liability action 

6 may not be brought in any Federal or State court. 

7 (b) DISMISSAL OF PENDING ACTIONS.—A qualified 

8 civil liability action that is pending on the date of the en9 actment of this Act shall be dismissed immediately by the 

10 court in which the action was brought or is currently pend11 ing. 

12 (c) DISCOVERY.— 

13 (1) STAY.—If, in an action filed after May 7, 

14 2007, a party files a motion asserting that some or 

15 all claims raised in a complaint are subject to dis16 missal pursuant to this Act, or notifies the court 

17 that it intends to file such a motion in a timely man18 ner, no person shall be required before the court’s 

19 final decision on such motion to respond to any dis20 covery request or otherwise provide any party with 

21 any documents, data compilations, tangible things, 

22 testimony, admissions, information regarding poten23 tial evidence or witnesses, or other information un24 less the court finds upon motion of any party that 

25 a response to a particularized discovery request is 


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1 necessary to preserve evidence or to prevent undue 

2 prejudice to that party. 

3 (2) RESPONSIBILITY OF PARTIES.—During the 

4 pendency of any stay of discovery under paragraph 

5 (1), the responsibilities of the parties with regard to 

6 the treatment of all documents, data compilations 

7 (including electronically recorded or stored data), 

8 and tangible objects shall be governed by applicable 

9 Federal or State rules of civil procedure. A party ag10 grieved by the failure of an opposing party to comply 

11 with this paragraph shall have the applicable rem12 edies made available by such applicable rules, pro13 vided that no remedy shall be afforded that conflicts 

14 with the terms of paragraph (1). 

15 (3) EXPEDITED CONSIDERATION.—In any ac16 tion in which a stay is entered pursuant to para17 graph (1), the court is encouraged to expedite con18 sideration of the motion to dismiss. 

19 (d) PLEADINGS.—In any action that is allegedly of 

20 the type described in section 4(5) seeking to impose liabil21 ity of any kind based on accumulative acts of consumption 

22 of a qualified product, the complaint initiating such action 

23 shall state with particularity for each defendant and cause 

24 of action— 


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1 (1) each element of the cause of action and the 

2 specific facts alleged to satisfy each element of the 

3 cause of action; 

4 (2) the Federal and State statutes or other laws 

5 that allegedly create the cause of action; and 

6 (3) the section 4(5)(B) exception being relied 

7 upon and the specific facts that allegedly satisfy the 

8 requirements of that exception. 

9 (e) RULE OF CONSTRUCTION.—No provision of this 

10 Act shall be construed to create a public or private cause 

11 of action or remedy. 

12 SEC. 4. DEFINITIONS. 

13 In this Act: 

14 (1) ENGAGED IN THE BUSINESS.—The term 

15 ‘‘engaged in the business’’ means a person who man16 ufactures, markets, distributes, advertises, or sells a 

17 qualified product in the person’s regular course of 

18 trade or business. 

19 (2) MANUFACTURER.—The term ‘‘manufac20 turer’’ means, with respect to a qualified product, a 

21 person who is lawfully engaged in the business of 

22 manufacturing the product. 

23 (3) PERSON.—The term ‘‘person’’ means any 

24 individual, corporation, company, association, firm, 


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1 partnership, society, joint stock company, or any 

2 other entity, including any governmental entity. 

3 (4) QUALIFIED PRODUCT.—The term ‘‘qualified 

4 product’’— 

5 (A) means a food (as defined in section 

6 201(f) of the Federal Food, Drug, and Cos7 metic Act (21 U.S.C. 321(f))); and 

8 (B) shall not include a dietary supplement 

9 (as defined in section 201(ff) of the Federal 

10 Food, Drug and Cosmetic Act (21 U.S.C. 

11 321(ff))). 

12 (5) QUALIFIED CIVIL LIABILITY ACTION.— 

13 (A) IN GENERAL.—Subject to subpara14 graph (B), the term ‘‘qualified civil liability ac15 tion’’— 

16 (i) means a civil action brought by 

17 any person against a manufacturer, mar18 keter, distributor, advertiser, or seller of a 

19 qualified product, or a trade association, 

20 for damages, penalties, declaratory judg21 ment, injunctive or declaratory relief, res22 titution, or other relief arising out of, or 

23 related to— 


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1 (I) a person’s accumulated acts 

2 of consumption of a qualified product; 

3 and 

4 (II) that person’s weight gain, 

5 obesity, or a health condition caused 

6 or associated with that person’s 

7 weight gain or obesity; and 

8 (ii) includes an action brought by a 

9 person other than the person on whose 

10 weight gain, obesity, or health condition 

11 the action is based, and any derivative ac12 tion brought by or on behalf of any person 

13 or any representative, spouse, parent, 

14 child, or other relative of that person. 

15 (B) EXCEPTION.—A qualified civil liability 

16 action shall not include— 

17 (i) an action based on allegations of 

18 breach of express contract or express war19 ranty, provided that the grounds for recov20 ery being alleged in such action are unre21 lated to a person’s weight gain, obesity, or 

22 a health condition associated with a per23 son’s weight gain or obesity; 

24 (ii) an action based on allegations 

25 that— 


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1 (I) a manufacturer or seller of a 

2 qualified product knowingly violated a 

3 Federal or State statute applicable to 

4 the marketing, advertisement, or la5 beling of the qualified product with in6 tent for a person to rely on that viola7 tion; 

8 (II) such person individually and 

9 justifiably relied on that violation; and 

10 (III) such reliance was the proxi11 mate cause of injury related to that 

12 person’s weight gain, obesity, or a 

13 health condition associated with that 

14 person’s weight gain or obesity; or 

15 (iii) an action brought by the Federal 

16 Trade Commission under the Federal 

17 Trade Commission Act (15 U.S.C. 41 et 

18 seq.) or by the Federal Food and Drug 

19 Administration under the Federal Food, 

20 Drug, and Cosmetic Act (21 U.S.C. 301 et 

21 seq.). 

22 (6) SELLER.—The term ‘‘seller’’ means, with 

23 respect to a qualified product, a person lawfully en24 gaged in the business of marketing, distributing, ad25 vertising, or selling a qualified product. 


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1 (7) STATE.—The term ‘‘State’’ includes each of 

2 the several States of the United States, the District 

3 of Columbia, the Commonwealth of Puerto Rico, the 

4 Virgin Islands, Guam, American Samoa, and the 

5 Commonwealth of the Northern Mariana Islands, 

6 and any other territory or possession of the United 

7 States, and any political subdivision of any such 

8 place. 

9 (8) TRADE ASSOCIATION.—The term ‘‘trade as10 sociation’’ means any association or business organi11 zation (whether or not incorporated under Federal 

12 or State law) that is not operated for profit, and 2 

13 or more members of which are manufacturers, mar14 keters, distributors, advertisers, or sellers of a quali15 fied product. 

Æ 


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