II 

109TH CONGRESS 

1ST SESSION S. 908 

To allow Congress, State legislatures, and regulatory agencies to determine 

appropriate laws, rules, and regulations to address the problems of weight 

gain, obesity, and health conditions associated with weight gain or obesity. 

IN THE SENATE OF THE UNITED STATES 

APRIL 26, 2005 

Mr. MCCONNELL introduced the following bill; which was read twice and 

referred to the Committee on the Judiciary 

A BILL

To allow Congress, State legislatures, and regulatory agencies to determine appropriate laws, rules, and regulations 

to address the problems of weight gain, obesity, and 

health conditions associated with weight gain or obesity.

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 2005’’. 

6 SEC. 2. FINDINGS; PURPOSE. 

7 (a) FINDINGS.—Congress finds that— 
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1 (1) the food and beverage industries are a sig2 nificant part of our national economy; 

3 (2) the activities of manufacturers and sellers 

4 of foods and beverages substantially affect interstate 

5 and foreign commerce; 

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

7 condition associated with a person’s weight gain or 

8 obesity is based on a multitude of factors, including 

9 genetic factors and the lifestyle and physical fitness 

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

11 gain, obesity, or a health condition associated with 

12 a person’s weight gain or obesity cannot be attrib13 uted solely to the consumption of any specific food 

14 or beverage; and 

15 (4) because fostering a culture of acceptance of 

16 personal responsibility is one of the most important 

17 ways to promote a healthier society, lawsuits seeking 

18 to blame individual food and beverage providers for 

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

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

21 not only legally frivolous and economically dam22 aging, but also harmful to a healthy America. 

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

24 Congress, State legislatures, and regulatory agencies to 

25 determine appropriate laws, rules, and regulations to ad-
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1 dress the problems of weight gain, obesity, and health con2 ditions associated with weight gain or obesity. 

3 SEC. 3. PRESERVATION OF SEPARATION OF POWERS. 

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

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

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

7 civil liability action that is pending on the date of the en8 actment of this Act shall be dismissed immediately by the 

9 court in which the action was brought or is currently pend10 ing. 

11 (c) DISCOVERY.— 

12 (1) STAY.—In any action that is allegedly of 

13 the type described in section 4(5)(B) seeking to im14 pose liability of any kind based on accumulative acts 

15 of consumption of a qualified product, the obligation 

16 of any party or non-party to make disclosures of any 

17 kind under any applicable rule or order, or to re18 spond to discovery requests of any kind, as well as 

19 all proceedings unrelated to a motion to dismiss, 

20 shall be stayed prior to the time for filing a motion 

21 to dismiss and during the pendency of any such mo22 tion, unless the court finds upon motion of any 

23 party that a response to a particularized discovery 

24 request is necessary to preserve evidence or to pre25 vent undue prejudice to that party. 
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1 (2) RESPONSIBILITY OF PARTIES.—During the 

2 pendency of any stay of discovery under paragraph 

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

4 the treatment of all documents, data compilations 

5 (including electronically recorded or stored data), 

6 and tangible objects shall be governed by applicable 

7 Federal or State rules of civil procedure. A party ag8 grieved by the failure of an opposing party to comply 

9 with this paragraph shall have the applicable rem10 edies made available by such applicable rules, pro11 vided that no remedy shall be afforded that conflicts 

12 with the terms of paragraph (1). 

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

14 the type described in section 4(5)(B) seeking to impose 

15 liability of any kind based on accumulative acts of con16 sumption of a qualified product, the complaint initiating 

17 such action shall state with particularity— 

18 (1) each element of the cause of action; 

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

20 that were allegedly violated; 

21 (3) the specific facts alleged to constitute the 

22 claimed violation of law; and 

23 (4) the specific facts alleged to have caused the 

24 claimed injury. 
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1 (e) RULE OF CONSTRUCTION.—No provision of this 

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

3 of action or remedy. 

4 SEC. 4. DEFINITIONS. 

5 In this Act: 

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

7 ‘‘engaged in the business’’ means a person who man8 ufactures, markets, distributes, advertises, or sells a 

9 qualified product in the person’s regular course of 

10 trade or business. 

11 (2) MANUFACTURER.—The term ‘‘manufac12 turer’’ means, with respect to a qualified product, a 

13 person who is lawfully engaged in the business of 

14 manufacturing the product. 

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

16 individual, corporation, company, association, firm, 

17 partnership, society, joint stock company, or any 

18 other entity, including any governmental entity. 

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

20 product’’ means a food (as defined in section 201(f) 

21 of the Federal Food, Drug, and Cosmetic Act (21 

22 U.S.C. 321(f))). 

23 (5) QUALIFIED CIVIL LIABILITY ACTION.— 

24 (A) IN GENERAL.—Subject to subpara25 graph (B), the term ‘‘qualified civil liability ac-
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1 tion’’ means a civil action brought by any per2 son against a manufacturer, marketer, dis3 tributor, advertiser, or seller of a qualified 

4 product, or a trade association, for damages, 

5 penalties, declaratory judgment, injunctive or 

6 declaratory relief, restitution, or other relief 

7 arising out of, or related to a person’s accumu8 lated acts of consumption of a qualified product 

9 and weight gain, obesity, or a health condition 

10 that is associated with a person’s weight gain or 

11 obesity, including an action brought by a person 

12 other than the person on whose weight gain, 

13 obesity, or health condition the action is based, 

14 and any derivative action brought by or on be15 half of any person or any representative, 

16 spouse, parent, child, or other relative of that 

17 person. 

18 (B) EXCEPTION.—A qualified civil liability 

19 action shall not include— 

20 (i) an action based on allegations of 

21 breach of express contract or express war22 ranty, provided that the grounds for recov23 ery being alleged in such action are unre24 lated to a person’s weight gain, obesity, or 
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1 a health condition associated with a per2 son’s weight gain or obesity; 

3 (ii) an action based on allegations 

4 that— 

5 (I) a manufacturer or seller of a 

6 qualified product knowingly violated a 

7 Federal or State statute applicable to 

8 the marketing, advertisement, or la9 beling of the qualified product with in10 tent for a person to rely on that viola11 tion; 

12 (II) such person individually and 

13 justifiably relied on that violation; and 

14 (III) such reliance was the proxi15 mate cause of injury related to that 

16 person’s weight gain, obesity, or a 

17 health condition associated with that 

18 person’s weight gain or obesity; or 

19 (iii) an action brought by the Federal 

20 Trade Commission under the Federal 

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

22 seq.) or by the Federal Food and Drug 

23 Administration under the Federal Food, 

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

25 seq.). 
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1 (6) SELLER.—The term ‘‘seller’’ means, with 

2 respect to a qualified product, a person lawfully en3 gaged in the business of marketing, distributing, ad4 vertising, or selling a qualified product. 

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

6 the several States of the United States, the District 

7 of Columbia, the Commonwealth of Puerto Rico, the 

8 Virgin Islands, Guam, American Samoa, and the 

9 Commonwealth of the Northern Mariana Islands, 

10 and any other territory or possession of the United 

11 States, and any political subdivision of any such 

12 place. 

13 (8) TRADE ASSOCIATION.—The term ‘‘trade as14 sociation’’ means any association or business organi15 zation (whether or not incorporated under Federal 

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

17 or more members of which are manufacturers, mar18 keters, distributors, advertisers, or sellers of a quali19 fied product.

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