First Substitute S.B. 214

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Senate 3rd Reading Amendments 2-24-2004 sm/ecm This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Tue, Feb 24, 2004 at 3:56 PM by smaeser. --> This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Tue, Feb 24, 2004 at 5:13 PM by smaeser. --> This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Tue, Feb 24, 2004 at 5:45 PM by smaeser. --> Senator Howard A. Stephenson proposes the following substitute bill:

1 PROHIBITION OF OBESITY LAWSUITS
2 2004 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Howard A. Stephenson
5
6 LONG TITLE
7 General Description:
8 This bill enacts the Commonsense Consumption Act.
9 Highlighted Provisions:
10 This bill:
11 . provides manufacturers, packers, distributors, carriers, holders, sellers, marketers,
12 and advertisers of food with immunity from civil liability for obesity S [ , ] AND s weight gain S [ ,
13 and related health concerns ] CLAIMS s ;
14 . allows an exception for food that does not meet state or federal standards; and
15 . requires that any actions commenced plead with particularity the injury and the
16 proximate cause.
17 Monies Appropriated in this Bill:
18 None
19 Other Special Clauses:
20 None
21 Utah Code Sections Affected:
22 ENACTS:
23 78-27d-101, Utah Code Annotated 1953
24 78-27d-102, Utah Code Annotated 1953
25 78-27d-103, Utah Code Annotated 1953

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Senate 3rd Reading Amendments 2-24-2004 sm/ecm 26

78-27d-104, Utah Code Annotated 1953
27 78-27d-105, Utah Code Annotated 1953
28 78-27d-106, Utah Code Annotated 1953
29
30 Be it enacted by the Legislature of the state of Utah:
31 Section 1. Section 78-27d-101 is enacted to read:
32 78-27d-101. Title.
33 This chapter is known as the "Commonsense Consumption Act."
34 Section 2. Section 78-27d-102 is enacted to read:
35 78-27d-102. Definitions.
36 As used in this chapter:
37 (1) "Claim" means any assertion by or on behalf of a natural person, as well as any
38 derivative claim arising from it, and asserted by or on behalf of any other person.
39 (2) "Food" S [ means ] s :
40 (a) S [ articles used for internal consumption for man or other animals ] MEANS ANY RAW,
40a COOKED, OR PROCESSED EDIBLE SUBSTANCE, BEVERAGE, OR INGREDIENT USED OR INTENDED
40b FOR USE OR FOR SALE IN WHOLE OR IN PART FOR HUMAN CONSUMPTION s ;
41 (b) S [ chewing gum; and ] DOES NOT INCLUDE:
41a (i) TOBACCO PRODUCTS;
41b (ii) ALCOHOL PRODUCTS;
41c (iii) VITAMINS OR DIETARY SUPPLEMENTS;
41d (iv) ILLEGAL DRUGS; OR
41e (v) PRESCRIPTION OR OVER-THE-COUNTER DRUGS.
42 [ (c) articles used for components of Subsection (a) or (b). ] s
43 (3) "Knowing and willful violation" means that the conduct constituting the violation
44 was:
45 (a) committed with the intent to deceive or injure consumers or with actual knowledge
46 that the conduct was injurious to consumers; and
47 (b) not required by regulation, order, rule, ordinance, or any statute administered by a
48 federal, state, or local government agency.
49 (4) "Condition resulting from long term consumption of food" means the cumulative
50 effect of consumption of food, which includes weight gain, obesity, or other generally known
51 health conditions allegedly caused by or likely to result from the consumption of food.
52 Section 3. Section 78-27d-103 is enacted to read:
53 78-27d-103. Prevention of S [ frivolous ] UNFOUNDED s lawsuits -- Exemption.
54 (1) Except as provided in Subsection (2), a manufacturer, packer, distributor, carrier,
55 holder, seller, marketer, advertiser of a food, or an association of one or more such entities,
56 may not be subject to civil liability arising under any state statute, rule, public policy, court or

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Senate 3rd Reading Amendments 2-24-2004 sm/ecm 57

administrative decision, municipal ordinance, or other action having the effect of law, for any
58 claim S [ for a condition ] OF OBESITY OR WEIGHT GAIN s resulting from S [ long term ] THE s
58a consumption of food.
59 (2) Subsection (1) may not apply where the claim of S [ conditions ] OBESITY OR WEIGHT
59a GAIN [ resulting from
60 long-term consumption of food ] s is based on:
61 (a) a material violation of an adulteration or misbranding requirement prescribed by
62 state or federal statute, rule, regulation, or ordinance and the claimed injury was proximately
63 caused by the violation; or
64 (b) any other material violation of federal or state law applicable to the manufacturing,
65 marketing, distribution, advertising, labeling, or sale of food, provided that the violation is
66 knowing and willful, and the claimed injury was proximately caused by the violation.
67 Section 4. Section 78-27d-104 is enacted to read:
68 78-27d-104. Pleading requirements.
69 (1) In any action commenced under the provisions of Subsection 78-27d-103 (2), the
70 complaint or petition shall state with particularity the following:
71 (a) the statute, rule, regulation, ordinance, or other law that was allegedly violated;
72 (b) the facts that are alleged to constitute a material violation of the statute, rule,
73 regulation, ordinance, or other law; and
74 (c) the facts alleged to demonstrate that the violation proximately caused actual injury
75 to the plaintiff.
76 (2) The complaint or petition shall also state with particularity facts sufficient to
77 support a reasonable inference that the violation was with intent to deceive or injure consumers
78 or with the actual knowledge that the violation was injurious to consumers.
79 Section 5. Section 78-27d-105 is enacted to read:
80 78-27d-105. Stay pending motion to dismiss.
81 (1) In any action commenced under the provisions of Subsection 78-27d-103 (2), all
82 discovery and other proceedings shall be stayed during the pendency of any motion to dismiss
83 unless the court finds upon the motion of any party that particularized discovery is necessary to
84 preserve evidence or to prevent undue prejudice to a party.
85 (2) During the pendency of any stay of discovery pursuant to this section, unless
86 otherwise ordered by the court, any party to the action with actual notice of the allegations
87 contained in the complaint shall treat all documents, data compilations, and tangible objects

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89 the subject of a continuing request for production from an opposing party under Rule 34,
90 URCP.
91 Section 6. Section 78-27d-106 is enacted to read:
92 78-27d-106. Applicability.
93 The provisions of this chapter apply to all covered claims pending on May 3, 2004, and
94 all claims filed after that date, regardless of when the claim arose.

Legislative Review Note
as of 2-11-04 6:00 PM

The Utah Constitution, Article I, Section 11, provides every person with open access to the
courts for an injury done to his person, property, or reputation. This legislation exempts from
civil liability any manufacturer, packer, distributor, carrier, holder, seller, marketer, or
advertiser of food in an action brought by a person claiming to have suffered an injury such as
weight gain, obesity, or other generally known condition allegedly caused by or likely to result
from the long-term consumption of food.

If a court determined that a person's health condition could be attributed to the long-term
consumption of food served by a commercial establishment, and that the person's health
condition was an "injury," then this legislation might violate the Utah Supreme Court's
interpretation of Article I, Section 11, because it would prevent an injured person from open
access to the courts.

Office of Legislative Research and General Counsel