By: Van Arsdale, et al. (Senate Sponsor - Carona) H.B. No. 107
(In the Senate - Received from the House May 10, 2005;
May 12, 2005, read first time and referred to Committee on State
Affairs; May 20, 2005, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 8, Nays 0;
May 20, 2005, sent to printer.)
COMMITTEE SUBSTITUTE FOR H.B. No. 107 By: Armbrister
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) "Agricultural commodity" has the meaning assigned
by Section 41.002, Agriculture Code.
(2) "Agricultural producer" means any producer of an
agricultural commodity.
(3) "Food" has the definition assigned by Section
431.002, Health and Safety Code. "Food" does not include:
(A) a cosmetic, as defined by Section 321(i) of
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 321
(i));
(B) a drug, as defined by Section 321(g) of the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 321(g)),
whether prescription or over-the-counter; or
(C) a dietary supplement, as defined by Section
321(ff) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
Section 321(ff)).
(4) "Livestock" has the meaning assigned by Section
1.003, Agriculture Code.
(5) "Livestock producer" means any producer of
livestock.
(6) "Manufacturer" means a person lawfully engaged, in
the regular course of the person's trade or business, in
manufacturing a food.
(7) "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.
(8) "State" includes each state 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.
(9) "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 manufacturer, seller, trade
association, livestock producer, or agricultural producer is not
liable under any law of this state for any claim arising out of
weight gain or obesity, a health condition associated with weight
gain or obesity, or any other generally known condition allegedly
caused by or allegedly likely to result from the long-term
consumption of food, 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 or obesity or any health
condition associated with an individual's weight gain or obesity;
or
(2) an action brought:
(A) under Chapter 431, Health and Safety Code; or
(B) by the attorney general under Section 17.47,
Business & Commerce Code.
(c) This section does not create a cause of action.
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.
Sec. 138.004. STAY. (a) For an action described by Section
138.002(b), 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.
(b) 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.
(c) A party aggrieved by the wilful failure of an opposing
party to comply with this section may apply to the court for an
order awarding appropriate sanctions.
SECTION 2. A court shall immediately dismiss any pending
action under its jurisdiction that:
(1) was filed on or after June 1, 2005; and
(2) under Chapter 138, Civil Practice and Remedies
Code, as added by this Act, could not be brought before the court.
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.
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