Commonsense Consumption Act Exposed

The Commonsense Consumption Act was approved by the ALEC Board of Directors in January 2004, reapproved in 2013 and brough up for consideration again at the 2017 ALEC Annual Meeting.

ALEC Bill Text

Summary

The Commonsense Consumption Act prevents the legislative and regulatory functions of the State of _____ from being usurped by civil lawsuits against a food manufacturer, packer, distributor, carrier, holder, seller, marketer, advertiser or trade association for claims of [actual or potential] injury resulting from weight gain, obesity, or any health condition related to weight gain, obesity, or cumulative consumption.

Section 1. {Short Title}

This act may be known as the Commonsense Consumption Act.

Section 2. {Legislative Intent}

To prevent frivolous lawsuits against manufacturers, packers, distributors, carriers, holders, sellers, marketers or advertisers of food products that comply with applicable statutory and regulatory requirements.

Section 3. {Litigation Management for Purveyors of Food that Comply with Applicable State and Federal Laws}

(A) Prevention of Frivolous Lawsuits.Except as exempted in paragraph 3B below, a manufacturer, packer, distributor, carrier, holder, seller, marketer or advertiser of a food (as defined at Section 201(f) of the Federal Food Drug and Cosmetic Act (21 U.S.C. 321(f)), or an association of one or more such entities, shall not be subject to civil liability arising under any law of the State of ______ (including all statutes, regulations, rules, common law, public policies, court or administrative decisions or decrees, or other State action having the effect of law) for any claim (as defined below) arising out of weight gain, obesity, a health condition associated with weight gain or obesity, or other generally known condition allegedly caused by or allegedly likely to result from long-term consumption of food.

(B) Exemptions. Paragraph 3A above shall not preclude civil liability where the claim of weight gain, obesity, health condition associated with weight gain or obesity, or other generally known condition allegedly caused by or allegedly likely to result from long-term consumption of food is based on

(1) A material violation of an adulteration or misbranding requirement prescribed by statute or regulation of the State of _____ or the United States of America and the claimed injury was proximately caused by such violation; or

(2) Any other material violation of federal or state law applicable to the manufacturing, marketing, distribution, advertising, labeling, or sale of food, provided that such violation is knowing and willful (as defined below), and the claimed injury was proximately caused by such violation.

(C) Definitions. For purposes of this Act, the following definitions apply.

(1) A “claim” means any claim by or on behalf of a natural person, as well as any derivative or other claim arising therefrom asserted by or on behalf of any other person.

(2) The term “other person” as used in the immediately preceding sentence means any individual, corporation, company, association, firm, partnership, society, joint-stock company, or any other entity, including any governmental entity or private attorney general.

(3) A “generally known condition allegedly caused by or allegedly likely to result from long-term consumption” means a condition generally known to result or to likely result from the cumulative effect of consumption, and not from a single instance of consumption.

(4) A “knowing and willful” violation of federal or state law means that

(a) The conduct constituting the violation was committed with the intent to deceive or injure consumers or with actual knowledge that such conduct was injurious to consumers; and

(b) The conduct constituting the violation was not required by regulations, orders, rules or other pronouncement of, or any statute administered by, a Federal, state, or local government agency.

(D) Pleading Requirements. In any action exempted under subparagraph 3B.1 above, the complaint initiating such action shall state with particularity the following: the statute, regulation or other law of the State of ____ or of the United States that was allegedly violated; the facts that are alleged to constitute a material violation of such statute or regulation; and the facts alleged to demonstrate that such violation proximately caused actual injury to the plaintiff. In any action exempted under subparagraph 3B.2 above, in addition to the foregoing pleading requirements, the complaint initiating such action shall state with particularity facts sufficient to support a reasonable inference that the violation was with intent to deceive or injure consumers or with the actual knowledge that such violation was injurious to consumers. For purposes of applying this Act, the foregoing pleading requirements are hereby deemed part of the substantive law of the State of ____ and not merely in the nature of procedural provisions. [Add for states, like California, without actual injury requirement: The requirements of actual injury, knowledge and willfulness (as defined above), and proximate causation set forth in this paragraph (3D) shall apply as set forth herein notwithstanding any other law of the State of _____ which may be inconsistent with or contrary to such requirements.]

(E) Stay pending motion to dismiss. In any action exempted under paragraph 3B above, all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss unless the court finds upon the motion of any party that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party. During the pendency of any stay of discovery pursuant to this paragraph, unless otherwise ordered by the court, any party to the action with actual notice of the allegations contained in the complaint shall treat all documents, data compilations (including electronically recorded or stored data), and tangible objects that are in the custody or control of such party and that are relevant to the allegations, as if they were the subject of a continuing request for production of documents from an opposing party under the State of ____ [Rules of Civil Procedure].

Section 4. {Applicability to Pending and Future Claims}

The provisions of this Act shall apply to all covered claims pending on the date of the Effective Date and all claims filed thereafter, regardless of when the claim arose.

Section 5. {Effective Date.}

Section 6. {Severability clause.}

Section 7. {Repealer clause.}

Approved by ALEC Board of Directors on January 2004.

Reapproved by ALEC Board of Directors on January 28, 2013.