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79R1007 DAK-D

By:  Van Arsdale                                                  H.B. No. 107


A BILL TO BE ENTITLED
AN ACT
relating to prohibiting actions brought against certain persons alleging injury relating to an individual's weight gain, obesity, or any health condition associated with weight gain or obesity. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Title 6, Civil Practice and Remedies Code, is amended by adding Chapter 138 to read as follows:
CHAPTER 138. PERSONAL RESPONSIBILITY FOR FOOD CONSUMPTION
Sec. 138.001. DEFINITIONS. In this chapter: (1) "Food" has the definition assigned that term by Section 201(f) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 321(f)). (2) "Manufacturer" means a person lawfully engaged, in the regular course of the person's trade or business, in manufacturing a food in interstate or foreign commerce. (3) "Seller" means a person lawfully engaged, in the regular course of the person's trade or business, in marketing, distributing, advertising, or selling a food in interstate or foreign commerce. (4) "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 of those places. (5) "Trade association" means any association or business organization, whether or not incorporated under federal or state law, that is not operated for profit, and two or more members of which are manufacturers, marketers, distributors, advertisers, or sellers of a food. Sec. 138.002. CIVIL ACTION PROHIBITED. (a) Except as otherwise provided by this section, a person may not bring in any state court a civil action against a manufacturer or seller of a food, or a trade association, for damages, penalties, declaratory judgment, injunctive or declaratory relief, restitution, or other relief arising out of, related to, or resulting in injury or potential injury resulting from an individual's consumption of a food and weight gain, obesity, or any health condition that is associated with an individual's weight gain or obesity, including: (1) an action brought by a person other than the individual on whose weight gain, obesity, or health condition the action is based; and (2) any derivative action brought by or on behalf of any individual or any representative, spouse, parent, child, or other relative of any individual. (b) This section does not prohibit a person from bringing: (1) an action in which: (A) a manufacturer or seller of a food knowingly and wilfully violates a federal or state statute applicable to the manufacturing, marketing, distribution, advertisement, labeling, or sale of the food; and (B) the violation is a proximate cause of injury related to an individual's weight gain, obesity, or any health condition associated with an individual's weight gain or obesity; (2) an action for breach of express contract or express warranty in connection with the purchase of a food; or (3) an action brought under: (A) the Federal Trade Commission Act (15 U.S.C. Section 41 et seq.); or (B) the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.). (c) A court shall dismiss with prejudice an action that a person is prohibited from bringing under this section. Sec. 138.003. PLEADINGS. In an action described in Section 138.002(b)(1), the initiating petition must state with particularity: (1) the federal and state statutes allegedly violated; and (2) the facts that are alleged to have proximately caused the injury claimed. SECTION 2. (a) Subject to Subsection (b) of this section, a court shall immediately dismiss any pending action under its jurisdiction that, under Chapter 138, Civil Practice and Remedies Code, as added by this Act, could not be brought before it. (b) For an action described by Section 138.002(b)(1) or (2), Civil Practice and Remedies Code, as added by this Act, all discovery and other proceedings are stayed during the pendency of any motion to dismiss unless the court finds on 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, unless otherwise ordered by the court, any party to the action with actual notice of the allegations contained in the petition shall treat all documents, data compilations, including electronically recorded or stored data, and tangible objects that are in the custody or control of the person 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 applicable rules of civil procedure. A party aggrieved by the wilful failure of an opposing party to comply with this subsection may apply to the court for an order awarding appropriate sanctions. SECTION 3. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2005.