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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.