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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:




Sponsor: Howard A. Stephenson


             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
             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
         78-27d-104, Utah Code Annotated 1953
             27          78-27d-105, Utah Code Annotated 1953
             28          78-27d-106, Utah Code Annotated 1953

             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,
             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
     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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     that are in the custody or control of the party and are relevant to the allegations, as if they were
             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

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