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, mar-
keters, 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, ad-
vertisers, 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 obe-
sity. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Commonsense Con-
sumption Act of 2009’’. 
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SEC. 2. FINDINGS; PURPOSE. 
(a) FINDINGS.—Congress finds that— 
(1) the food and beverage industries are a sig-
nificant 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 attrib-
uted to the consumption of any specific food or bev-
erage; 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 dam-
aging, but also harmful to a healthy America. 
(b) PURPOSE.—The purpose of this Act is to allow 
Congress, State legislatures, and regulatory agencies to 
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determine appropriate laws, rules, and regulations to ad-
dress the problems of weight gain, obesity, and health con-
ditions 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 en-
actment of this Act shall be dismissed immediately by the 
court in which the action was brought or is currently pend-
ing. 
(c) DISCOVERY.— 
(1) STAY.—If, in an action filed after May 7, 
2007, a party files a motion asserting that some or 
all claims raised in a complaint are subject to dis-
missal pursuant to this Act, or notifies the court 
that it intends to file such a motion in a timely man-
ner, no person shall be required before the court’s 
final decision on such motion to respond to any dis-
covery request or otherwise provide any party with 
any documents, data compilations, tangible things, 
testimony, admissions, information regarding poten-
tial evidence or witnesses, or other information un-
less the court finds upon motion of any party that 
a response to a particularized discovery request is 
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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 ag-
grieved by the failure of an opposing party to comply 
with this paragraph shall have the applicable rem-
edies made available by such applicable rules, pro-
vided that no remedy shall be afforded that conflicts 
with the terms of paragraph (1). 
(3) EXPEDITED CONSIDERATION.—In any ac-
tion in which a stay is entered pursuant to para-
graph (1), the court is encouraged to expedite con-
sideration of the motion to dismiss. 
(d) PLEADINGS.—In any action that is allegedly of 
the type described in section 4(5) seeking to impose liabil-
ity of any kind based on accumulative acts of consumption 
of a qualified product, the complaint initiating such action 
shall state with particularity for each defendant and cause 
of action— 
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(1) each element of the cause of action and the 
specific facts alleged to satisfy each element of the 
cause of action; 
(2) the Federal and State statutes or other laws 
that allegedly create the cause of action; and 
(3) the section 4(5)(B) exception being relied 
upon and the specific facts that allegedly satisfy the 
requirements of that exception. 
(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 man-
ufactures, markets, distributes, advertises, or sells a 
qualified product in the person’s regular course of 
trade or business. 
(2) MANUFACTURER.—The term ‘‘manufac-
turer’’ 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, 
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partnership, society, joint stock company, or any 
other entity, including any governmental entity. 
(4) QUALIFIED PRODUCT.—The term ‘‘qualified 
product’’— 
(A) means a food (as defined in section 
201(f) of the Federal Food, Drug, and Cos-
metic Act (21 U.S.C. 321(f))); and 
(B) shall not include a dietary supplement 
(as defined in section 201(ff) of the Federal 
Food, Drug and Cosmetic Act (21 U.S.C. 
321(ff))). 
(5) QUALIFIED CIVIL LIABILITY ACTION.— 
(A) IN
GENERAL.—Subject to subpara-
graph (B), the term ‘‘qualified civil liability ac-
tion’’— 
(i) means a civil action brought by 
any person against a manufacturer, mar-
keter, distributor, advertiser, or seller of a 
qualified product, or a trade association, 
for damages, penalties, declaratory judg-
ment, injunctive or declaratory relief, res-
titution, or other relief arising out of, or 
related to— 
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(I) a person’s accumulated acts 
of consumption of a qualified product; 
and 
(II) that person’s weight gain, 
obesity, or a health condition caused 
or associated with that person’s 
weight gain or obesity; and 
(ii) includes 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 ac-
tion 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 war-
ranty, provided that the grounds for recov-
ery being alleged in such action are unre-
lated to a person’s weight gain, obesity, or 
a health condition associated with a per-
son’s weight gain or obesity; 
(ii) an action based on allegations 
that— 
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(I) a manufacturer or seller of a 
qualified product knowingly violated a 
Federal or State statute applicable to 
the marketing, advertisement, or la-
beling of the qualified product with in-
tent for a person to rely on that viola-
tion; 
(II) such person individually and 
justifiably relied on that violation; and 
(III) such reliance was the proxi-
mate 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 en-
gaged in the business of marketing, distributing, ad-
vertising, or selling a qualified product. 
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(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 as-
sociation’’ means any association or business organi-
zation (whether or not incorporated under Federal 
or State law) that is not operated for profit, and 2 
or more members of which are manufacturers, mar-
keters, distributors, advertisers, or sellers of a quali-
fied product. 
Æ 
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