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Week Ending October 21, 2005
H.R.554 To prevent legislative and regulatory functions from being usurped by civil liability actions brought or continued against food manufacturers, marketers, distributors, advertisers, sellers, and trade associations for claims of injury relating to a person's weight gain, obesity, or any health condition associated with weight gain or obesity.
BRIEF
The House report accompanying the bill explained the purpose of the legislation: “Today, the American food industry, the nation's leading private sector employer, is facing a barrage of legal claims alleging it should pay monetary damages and be subject to equitable remedies based on legal theories claiming it should be held liable for the over-consumption of its legal products. H.R. 554 would preserve the separation of powers, support the principle of personal responsibility, and protect the largest employers in the United States from financial ruin in the face of frivolous obesity-related liability claims.”
If you eat food and get fat this bill would prohibit you from suing a food company or related businesses for your weight or any related health problems.
The bill would prohibit civil actions against manufacturers, marketers, distributors, advertisers and sellers of food related to a person’s food consumption and weight gain, obesity or other related health condition. Current, on-going civil actions would be dismissed. The bill also applies the prohibition and dismissal provisions to similar consumption / weight gain suits against food related trade associations.
Not prohibited are civil actions alleging a breach of contract or warranty unrelated to weight gain, obesity or related health condition; a violation of a federal or state statute related to marketing, advertising or labeling such that a person relies on the violating information and it caused injury related to weight gain, obesity or health condition. A violation brought by the Federal Trade Commission or the Food and Drug Administration and the food, Drug and Cosmetic Act. Other provisions of the bill manage the specific details of the complaints.
A committee amendment that would allow complaints involving a settlement to go forward was defeated in the committee.
It was noted during debate prior to passage that the definition of ‘food’ used in the bill is codified as such:
21 U.S.C. 321(f)
(f) The term “food” means
(1) articles used for food or drink for man or other animals,
(2) chewing gum, and
(3) articles used for components of any such article.
The definition, then, would appear to include food additives of any nature.
Amendments included a failed amendment to prevent counter-suits by the food industry against complainants and a failed amendment to exempt children 8 and under from those prohibited from bringing a lawsuit.
Sponsor: Representative Ric Keller (R-FL-8th)
Vote: Passed House 306 to 120 October 18, 2005 (RC 533)
Cost to the taxpayers: CBO calculates not cost to the taxpayers.
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MORE INFORMATION
CONCLUSION ON VARIOUS ELEMENTS OF THE BILL INCLUDING PUBLIC SUPPORT.
(a) Findings- Congress finds that--
(1) the food and beverage industries are a significant part of our national economy;
(2) the activities of manufacturers and sellers of foods and beverages substantially affect interstate and foreign commerce;
(3) a person's weight gain, obesity, or a health condition associated with a person's weight gain or obesity is based on a multitude of factors, including genetic factors and the lifestyle and physical fitness decisions of individuals, such that a person's weight gain, obesity, or a health condition associated with a person's weight gain or obesity cannot be attributed to the consumption of any specific food or beverage; and
(4) because fostering a culture of acceptance of personal responsibility is one of the most important ways to promote a healthier society, lawsuits seeking to blame individual food and beverage providers for a person's weight gain, obesity, or a health condition associated with a person's weight gain or obesity are not only legally frivolous and economically damaging, but also harmful to a healthy America.
(b) Purpose- The purpose of this Act is to allow Congress and regulatory agencies to determine appropriate laws, rules, and regulations to address the problems of weight gain, obesity, and health conditions associated with weight gain or obesity.
According to a recent Gallup Poll: `[n]early 9 in 10 Americans (89%) oppose holding the fast-food industry legally responsible for the diet-related health problems of people who eat that kind of food on a regular basis. Only 9% are in favor. Those who describe themselves as overweight are no more likely than others to blame the fast-food industry for obesity-related health problems, or to favor lawsuits against the industry.' 33
[Footnote] And another recent poll shows that only 6% of Americans think food companies and restaurants are primarily responsible for obesity. As reported in The Washington Times:
[Footnote 33: Gallup Poll, Analysis, `Public Balks at Obesity Lawsuits' (July 21, 2003) (available at http://www.gallup.com/poll/releases/pr030721.asp) (results based on telephone interviews with a randomly selected national sample of 1,006 adults, 18 years and older, conducted July 7-9, 2003).]
In a recent poll conducted by Dutko Worldwide (800 registered voters, March 21-26, 2005), we asked voters `who bears the greatest responsibility for obesity' in the United States--individuals, parents, doctors, schools, restaurants, food companies or nutrition educators. An overwhelming majority of voters (63 percent) believes `individuals themselves' bear the greatest responsibility, followed next by parents (22 percent). Not only are these results impressive for those advocating more personal responsibility, but the percentage that believe food companies (4 percent), restaurants (2 percent) and schools (1 percent) bear responsibility is stunningly low, given all the media attention implicating these institutions in the obesity crisis. 34
[Footnote]
[Footnote 34: Gary Andres, `The Waistline Wars,' The Washington Times (April 20, 2005) at A19.]
As another recent survey revealed:
Even more striking, consumers are strongly against obesity lawsuits being allowed against fast food chains. Using a scale of 1 through 10, a hefty 74% chose `1,' indicating that they strongly disagreed that these suits should be allowed. The results suggest that Americans very much agree with Congress' recent efforts to prohibit these kinds of law suits against the food industry. 35
[Footnote]
[Footnote 35: Deloitte Consumer Business, `The Weight Debate,' (2004) at 3.]
The public appears to recognize what has also been clear to the Supreme Court, and to one principal Founding Father, James Madison. As the Supreme Court has stated, quoting Madison, `Some degree of abuse is inseparable from the proper use of every thing. . . .' 36
[Footnote]
[Footnote 36: New York Times Co. v. Sullivan, 376 U.S. 254, 271 (1964) (quoting James Madison).]
USA Today stated in an editorial opposing obesity lawsuits that `lawsuits . . . are no way to trim the nation's midsection. Market forces and public education work better . . . Ultimately, good eating habits are a matter of personal and parental responsibility. As the trial judge in the McDonald's case put it: `If a person knows or should know that eating copious orders of supersized McDonald's products is unhealthy and may result in weight gain, it is not the place of the law to protect them from their own excesses.' 37
[Footnote] Even the Los Angeles Times has editorialized against such lawsuits, stating `If kids are chowing down to excess on junk food, though, aren't their parents responsible for cracking down? And if parents or other grown-ups overindulge, isn't it their fault, not that of the purveyors of fast food? . . . Why boost their food bills because of legal jousting? People shouldn't get stuffed, but this line of litigation should.' 38
[Footnote]
[Footnote 37: `Don't Blame the Burgers,' USA Today (editorial) (January 31, 2005) at 10A.]
[Footnote 38: Editorial, `Fast Food Foolishness,' The Los Angeles Times (July 7, 2003) at B10.]
Dr. Gerard Musante is a clinical psychologist with training at Duke University Medical Center who has worked for more than 30 years with thousands of obese patients. He is the founder of Structure House, a residential weight loss facility in Durham, North Carolina. Dr. Musante said the following at a Senate hearing on similar legislation during the last Congress:
`Lawsuits are pointing fingers at the food industry in an attempt to curb the nation's obesity epidemic. These lawsuits do nothing but enable consumers to feel powerless in a battle for maintaining one's own personal health. The truth is, we as consumers have control over the food choices we make, and we must issue our better judgment when making these decisions. Negative lifestyle choices cause obesity, not a trip to a fast food restaurant or a cookie high in trans fat . . . Through working with obese patients, I have learned that the worst thing one can do is to blame an outside force to get themselves `off the hook,' to say it's not their fault, and that they are a victim . . . Congress has rightly recognized the danger of allowing Americans to continue blaming others for the obesity epidemic. It is imperative that we prevent lawsuits from being filed against any industry for answering consumer demands. The fact that we are addressing the issue here today is a step in the right direction.' 39
[Footnote]
[Footnote 39: Written Testimony of Dr. Gerard Musante, Founder, Structure House, before the Senate Subcommittee on Administrative Oversight and the Courts (October 16, 2003), available at http://judiciary.senate.gov/testimony.cfm?id=963&wit--id=2730.]
Even the Chairman of the American Council for Fitness and Nutrition, Susan Finn, has written that `Although obesity is a serious health threat to millions of Americans, lawsuits and finger pointing are not realistic solutions. If you are obese, you don't need a lawyer; you need to see your doctor, a nutritionist and a physical trainer. Playing the courtroom blame game won't make anyone thinner or healthier . . .' 40
[Footnote]
[Footnote 40: Susan Finn, The Washington Times (Letter to the Editor) (October 22, 2003) at A22.]
As the Wall Street Journal recently editorialized, `Earlier [last] year, the House of Representatives passed the Personal Responsibility in Food Consumption Act, which would shield food vendors from civil claims premised on weight gain . . . [A]llowing trial lawyers to exploit the obesity epidemic--and encouraging Americans to blame their dietary excesses on someone else--isn't going to make anyone healthier.' 41
[Footnote]
[Footnote 41: `Round Figures,' The Wall Street Journal (editorial) (November 30, 2004) at A18.]
On the other hand, the lobbying organization for personal injury attorneys, the Association of Trial Lawyers of America, has published a book that advises personal injury attorneys to keep people who believe in `personal responsibility' off juries. According to that book, `Often, a juror with a high need for personal responsibility fixates on the responsibility of the plaintiff . . . According to these jurors, the plaintiff must be accountable for his or her own conduct . . . The personal responsibility jurors tend to espouse traditional family values . . . Often, these jurors have strong religious beliefs . . . The only solution is to identify these jurors during voir dire and exclude them from the jury.' 42
[Footnote]
[Footnote 42: David A. Weiner, `Utilizing the Personal Responsibility Bias,' in ATLA's Litigating Tort Cases (Roxanne Barton Collin and Gregory S. Cusimano, editors-in-chief) (June 2003).]
Unfortunately, blame-shifting lawsuits continue to erode the traditional American value of personal responsibility by fomenting a culture of blame. Our lawsuit culture is even eroding parental responsibility. As Dr. Jana Klauer, a fellow at the New York City Obesity Research Center of St. Luke's Roosevelt Hospital has said, `I just wonder, where were the parents when (kids were) having these McDonald's breakfasts every morning? Were they incapable of pouring a bowl of cereal and some milk?' 43
[Footnote] As Will Rogers once observed, Americans are `letting lawyers instead of their conscience be their guide.'
[Footnote 43: Erin Duggan, `Tobacco-suit Tactics Now Target Fast Food,' Albany Times Union (April 6, 2003) at A1.]
The current lawsuit culture threatens fundamental liberties. As Philip Howard has written:
Our founding fathers would be shocked. There is no `right' to bring claims for whatever you want against someone else. Suing is a use of state power. A lawsuit seeks to use government's compulsory powers to coerce someone else to do something . . . Sticking a legal gun in someone's ribs . . . is not a feature of what our founders intended as individual rights. The point of freedom is almost exactly the opposite: We can live out lives without being cowed by the use of legal power. 44
[Footnote]
[Footnote 44: Philip K. Howard, The Collapse of the Common Good (New York: 2001) at 22-23.]
Philip Howard has also written that `It is precisely [lawmakers'] responsibility to decide, on behalf of the common good, when people should be able to sue and when they should not. Law is not a free-market commodity. Suing is the use of state power by one citizen against another.' 45
[Footnote]
[Footnote 45: Philip K. Howard, `It's No Fun Playing Torts,' Legal Times (November 15, 2004).]
Juries exercise government power and, just like any other exercise of government power, should be subject to reasonable checks. No government power should be able to, without any limit on its authority, impose unlimited liability for unlimited numbers of claims. Even prominent personal injury attorneys have scoffed at obesity-related lawsuits against the food industry. As The Washington Post reported:
[Y]ou'd be surprised to hear that some of the skeptics are among lawyers who normally file such suits on behalf of plaintiffs. Jack H. Olender, the dean of the D.C. trial lawyers, and Michael Hausfeld, author of many class-action lawsuits against corporations, pooh-poohed the McDonald's suit . . . Many in the plaintiff's bar, normally willing to find fault and sue, are asking, `Where's the beef?' . . . Hausfeld, of Cohen, Milstein, Hausfeld & Toll, also isn't shy about filing class-action lawsuits. But of the McDonald's case, he said: `That was one that took the law beyond the bounds . . .' 46
[Footnote]
[Footnote 46: Hearsay: The Lawyer's Column, The Washington Post (January 27, 2003) at E10.]
Such lawsuits will continue, driven by the allure of unlimited damage awards. The following exchange between a 60 Minutes correspondent and Caesar Barber, a plaintiff in a lawsuit against various restaurants, is instructive.
CAESAR BARBER: I'm saying that McDonald's affected my health. Yes, I am saying that.
RICHARD CARLETON (CBS News, 60 Minutes): So what do you want in return?
CAESAR BARBER: I want compensation for pain and suffering.
RICHARD CARLETON : But how much money do you want?
CAESAR BARBER: I don't know . . . maybe $1 million. That's not a lot of money now. 47
[Footnote]
[Footnote 47: `Food Fight,' CBS News `60 Minutes' (Australia) (September 15, 2002) (transcript).]
As Philip Howard has written, `First it was millions that took our breath away, then tens of millions, then hundreds of millions. Now it's billions. Pretty soon, one lucky victim may own the world.' 48
[Footnote]
[Footnote 48: Philip K. Howard, The Collapse of the Common Good (New York: 2001) at 58.]
H.R. 554 will encourage society to focus on the true causes of obesity: a lack of exercise. According to the Department of Health and Human Services, `physical inactivity contributes to 300,000 preventable deaths a year in the United States.' 49
[Footnote]
[Footnote 49: President's Council on Physical Fitness and Sports, `Fact Sheet: Physical Activity and Health,' available at http://www.fitness.gov/physical--activity--fact--sheet.html (citing U.S. Department of Health and Human Services and other Federal agency data) (emphasis added).]
In April, 2003, at a scientific conference of the Federation of American Societies for Experimental Biology, Nutritionist Lisa Sutherland of the University of North Carolina at Chapel Hill presented her findings that over the past twenty years, teenagers have, on average, increased their caloric intake by 1 percent. During that same time period, the percentage of teenagers who said they engaged in some sort of physical activity for thirty minutes a day dropped from 42% to 29%. Not surprisingly, teenage obesity over the twenty year period increased by 10%, indicating that it is not junk food that is making teenagers fat, but rather their lack of activity. 50
[Footnote] Similarly for adults, as manual labor has become less prevalent and sedentary jobs have become more prevalent, adult obesity has risen. 51
[Footnote]
[Footnote 50: L.A. Sutherland, `Health Trends in US Adolescents Over the Past 20 Years,' Program No. 708.7, Abstract 7714.]
[Footnote 51: See Todd G. Buchholz, `Burger, Fries and Lawyers: The Beef Behind Obesity Lawsuits' (conducted for U.S. Chamber of Commerce and U.S. Chamber Institute for Legal Reform) (July 2, 2003) at 11-12 (`In 1952, a dockworker lifts 50 boxes off of a mini-crane and places it on a handtruck, which he pulls to a warehouse. In 2003, a person earning a similar income would be sitting in front of a computer, inputting data and matching orders with deliveries. What's the key difference? Until recently, employers paid employees to exert energy and burn calories. In contrast, employers pay workers to stay in their seats.') (emphasis in original).]
Furthermore, Harvard University researchers tracked the snack food intake during 1996-1998 of almost 15,000 children aged 9 to 14 years. Their results were reported in the International Journal of Obesity. The researchers concluded, `Our results suggest that although snack foods may have low nutritional value, they were not an important independent determinant of weight gain among children and adolescents.' 52
[Footnote]
[Footnote 52: Steven Millor, `Snack Foods Don't Fatten Kids,' Fox News Channel (September 24, 2004).]
Exercise appears to be the best response to weight gain. As a recent study in the American Journal of Preventive Medicine concluded:
Because of the reasonable assumption that increased caloric intake should lead to obesity and its consequences, dietary restriction has been a standard public health recommendation . . . [However,] it would appear that caloric intake might not be a primary determinant of CVD [cardiovascular disease] outcome. The fact is that those who exercised more and ate more nevertheless had low CVD mortality. Thus, energy expenditure may be the key . . . Therefore, eating less may not necessarily equate with leanness, nor does eating more necessarily translate into obesity . . . Thus, perhaps the greatest practical value of this study is the finding here that a focus on increasing energy expenditure, rather than reducing caloric intake, may offer the most productive behavioral strategy by which to extend healthy life. 53
[Footnote]
[Footnote 53: Jing Fang, Judith Wylie-Rosett, Hillel W. Cohen, Robert C. Kaplan and Michael H. Alderman, `Exercise, body mass index, caloric intake, and cardiovascular mortality,' 25 American Journal of Preventive Medicine 4: 283-89, 287-88 (November 2003).]
Public schools could offer more physical education classes, of course, but according to food litigation and personal injury attorney John Banzhaf, school boards that allow vending machines in schools will be the next targets of obesity-related lawsuits, 54
[Footnote] which threatens to take money away from schools, including physical education programs, and give it to personal injury attorneys.
[Footnote 54: See `Banzhaf: School Boards Are Next in Line for Obesity Lawsuits' 1 Obesity Policy Report 6 (May 1, 2003) (`Banzhaf confirmed the suspicions (and fears) of many by stating flatly that school boards that allow vending machines in schools will be the next targets of obesity-related lawsuits.'). Currently, only one state, Illinois, still mandates physical education classes for grades K-12. See also Deborah Bach, `Coke Deal Could Make Schools Targets of Suits,' The Seattle Post-Intelligencer (July 2, 2003) at A1 (`A prominent Washington, D.C., law professor who led billion-dollar victories against the tobacco industry warned the Seattle School Board yesterday that it might become the target of an anti-obesity lawsuit for allowing middle and high schools to peddle soda to students . . . The contract allows only Coca-Cola products to be sold in school vending machines and nets about $400,000 annually for school activities . . . Adam Drewnowski, director of the Center for Public Health and Nutrition at the University of Washington, was outraged at the suggestion of a lawsuit. `This is just bottom-fishing. For the School Board to be making decisions under the threat of a lawsuit, I think that's scandalous,' he said.').]
According to one article:
Brita Butler-Wall, executive director of Seattle-based Citizens' Campaign for Commercial-Free Schools, has been lobbying the school board for more than a year to get rid of [its] Coca-Cola contract. Yet, as a parent of an eighth-grader in a local public school, she says, `I don't want to see our district spending its money hiring more lawyers to fight a legal battle.' Adam Drewnowski, director of the Center for Public Health Nutrition at the University of Washington, says, `If you want to influence the school board, you run for a seat on the board. Threatening a lawsuit is almost like blackmail. It's just unconscionable.' 55
[Footnote]
[Footnote 55: Laura Bradford, `Fat Foods: Back In Court' TIME Online, Inside Business (August 3, 2003).]
According to the National Association of Secondary School Principals, such lawsuits against schools threaten their ability to raise funds for vital programs. 56
[Footnote] Indeed, today only one state--Illinois--requires daily physical education classes for kindergarten through 12th grade. 57
[Footnote]
[Footnote 56: See Marguerite Higgins, `Food Fight,' The Washington Times (October 19, 2003) at A7 (`About 70 percent of 832 public schools polled in 2001 said they had a partnership with a food or beverage company to fund programs, a National Association of Secondary School Principals report said. Some principals are worried about losing their ability to have food fund-raising programs in schools, said Michael Carr, spokesman for the Reston association.').]
[Footnote 57: See Susan Finn, The Washington Times (Letter to the Editor) (October 22, 2003) at A22 (`When you consider that only one state--Illinois--requires daily physical education classes for kindergarten through 12th grade and that technological improvements have created an increasingly sedentary lifestyle, it's no wonder our nation's weight problem is getting worse.').]
The drive by personal injury attorneys who represent overeaters to blame those who serve them food and to collect unlimited monetary damages is an attempt to accomplish through litigation that which has not been achieved by legislation and the democratic process.
John Banzhaf, a personal injury attorney who helped spearhead lawsuits against tobacco companies, is now advising the lawyers involved in the litigation against various restaurants. In an interview on 60 Minutes, Mr. Banzhaf said:
If we can win one out of 10 cases, if we can persuade one out of ten juries to hit these people with big verdicts, the way we have with tobacco, we can force them to make important changes and finally somebody will be doing something about the problem of obesity, because, at this point nobody else, not the health educators, not the bureaucrats, not our legislators, are doing a damn thing about it. 58
[Footnote]
[Footnote 58: `Food Fight,' CBS News `60 Minutes' (September 15, 2002) (transcript).]
Mr. Banzhaf has also said, `if the legislatures won't legislate, then the trial lawyers will litigate.' 59
[Footnote]
[Footnote 59: National Public Radio, `Fast Food on Trial' (8/8/02).]
Various courts have described similar lawsuits against the firearms industry for harm caused by the misuse of its products by others as attempts to `regulate . . . through the medium of the judiciary' 60
[Footnote] and `improper attempt[s] to have [the] court substitute its judgment for that of the legislature, something which [the] court is neither inclined nor empowered to do.' 61
[Footnote] Such lawsuits erode down the separation of powers of the branches of government.
[Footnote 60: Penelas v. Arms Technology Inc. et al., No. 3D00-113, dismissal affirmed (Fla. Dist. Ct. App., 3d Dist., Feb. 14, 2001).]
[Footnote 61: See Cincinnati v. Beretta U.S.A. Corp., No. A9902369, 1999 WL 809838 (Ohio Com. Pl. Oct. 7, 1999) at *1.]
Large damage awards and requests for injunctive relief attempts to have the judiciary intrude into the decision-making process properly within the sphere of another branch of government, namely legislatures. 62
[Footnote] Those filing such lawsuits seek to circumvent legislatures and the popular will. As Philip Howard has written, `legislatures must reclaim the responsibility to set the boundaries who can sue for what. That's what it means to live under the rule of law.' 63
[Footnote]
[Footnote 62: See Gordon v. Texas, 153 F.3d 190, 194 (5th Cir. 1998) (citing Koohi v. United States, 976 F.2d 1328, 1332 (9th Cir. 1992) (`[B]ecause the framing of injunctive relief may require the courts to engage in the type of operational decision-making beyond their competence and constitutionally committed to other branches, such suits are far more likely to implicate political questions.').]
[Footnote 63: Philip K. Howard, `Charity Case,' The Wall Street Journal (March 17, 2005).]
The lawsuits against the food industry H.R. 554 addresses directly implicate core federalism principles articulated by the United States Supreme Court, which has made clear that `one State's power to impose burdens on the interstate market . . . is not only subordinate to the Federal power over interstate commerce, but is also constrained by the need to respect the interests of other States . . .' 64
[Footnote] Congress may exercise its authority under the Commerce Clause to prevent a few state courts from bankrupting the food industry, the largest non-governmental employer in the Nation.
[Footnote 64: 517 U.S. 559, 571 (1996).]
In fast food lawsuits, personal injury attorneys seek to obtain through the courts stringent limits on the sale and distribution of food beyond the court's jurisdictional boundaries. By virtue of the enormous compensatory and punitive damages sought, and because of the types of injunctive relief requested, these complaints in practical effect would require manufacturers of lawfully produced food to curtail or cease all lawful commercial trade in that food in the jurisdictions in which they reside--almost always outside of the states in which these complaints are brought--to avoid potentially limitless liability. Insofar as these complaints have the practical effect of halting or burdening interstate commerce in food, they can be appropriately addressed by Congress.
As the Supreme Court elaborated in Healy v. Beer Institute, 65
[Footnote] concerning the extraterritorial effects of state regulations:
[Footnote 65: 491 U.S. 324 (1989).]
The critical inquiry is whether the practical effect of the regulation is to control conduct beyond the boundaries of the State. . . . [T]he practical effect of the statute must be evaluated not only by considering the consequences of the [law] itself, but also by considering how the challenged [law] may interact with the legitimate regulatory regimes of other States and what effect would arise if not one, but many or every, State adopted similar [laws]. Generally speaking, the Commerce Clause protects against inconsistent [laws] arising from the projection of one State regulatory regime into the jurisdiction of another State. 66
[Footnote]
[Footnote 66: 491 U.S. at 336-37 (citations omitted).]
James Madison, in Federalist No. 42, described the purpose of the Commerce Clause as follows:
A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. 67
[Footnote]
[Footnote 67: The Federalist Papers, Federalist No. 22 (Madison) at 267-68 (Clinton Rossiter ed., 1961).]
That is, Madison foresaw the problem in which products or services would be made to cost more to consumers in one state because other states those products and services passed through would levy duties on them. That is precisely the problem today: some states, by allowing frivolous lawsuits to be brought for unlimited damages in cases involving products or services that touch their jurisdictions are raising the costs of providing those products and services to out-of-state customers, resulting in higher prices and lost jobs across multiple states or nationwide. It is the duty of Congress to prevent such unfairness. 68
[Footnote]
[Footnote 68: James Madison, according to his own notes of what he argued at the Constitutional Convention (he referred to himself in the third person), made clear that Congress must have the power to regulate commerce in this manner: `Whether the States are now restrained from laying tonnage duties depends on the extent of the power `to regulate commerce.' . . . He was more & more convinced that the regulation of Commerce was in its nature indivisible and ought to be wholly under one authority.' Debates on the Adoption of the Federal Constitution in the Convention Held at Philadelphia in 1787 (Jonathan Elliot, ed. 1845) (as reported by James Madison, notes of May 31, 1787) at 548.]
H.R. 554 includes discovery provisions designed to prevent fishing expeditions. 69
[Footnote] These provisions provide that discovery of documents be stayed while a court decides whether the case should be dismissed unless a court decides that particular discovery is necessary to preserve evidence or to prevent undue prejudice to a party. As the Wall Street Journal editorialized, `What has the personal-injury set so excited is that . . . discovery proceedings will cost defendants millions of dollars, which gives the plaintiffs leverage in any potential settlement talks.' 70
[Footnote] Such provisions also allows for court sanctions under applicable rules if a defendant destroys any documents relevant to the litigation. 71
[Footnote]
[Footnote 69: See Sec. 3(c)(1).]
[Footnote 70: `Fat Chance,' The Wall Street Journal (editorial) (February 1, 2005) at A12.]
[Footnote 71: See Sec. 3(c)(2).]
H.R. 554 also appropriately requires that any complaint alleging that a lawsuit should go forward under the exceptions in Sec. 4(5)(B) of H.R. 554 must state with particularity each element of the cause of action, the Federal and State statutes or other laws that were allegedly violated, the specific facts alleged to constitute the claimed violation of law, and the specific facts alleged to have caused the claimed injury. 72
[Footnote] This provision simply saves the time and money of all litigants, as it provides the court with crucial information early in the proceedings with which to determine whether the case can go forward at all. This provision costs neither party to such lawsuit anything because it requires statements of the same allegations that would have to be made in the case if the litigation is to be successful. Rather, it simply provides that such necessary information be provided to the court sooner rather than later, thus facilitating the court's decision as to whether the case may proceed. That saves the court's resources, as well as those of all the litigants.
[Footnote 72: See H.R. 554, Sec. 3(d).]
1. H.AMDT.591 to H.R.554 An amendment numbered 1 printed in House
Report 109-249 to make technical changes to the section of the bill that sets
out the types of information a plaintiff must provide to a judge to allow the
court to determine whether the lawsuit should proceed or be dismissed; clarify
that the pleading provision in H.R. 554 is meant to apply to all cases seeking
obesity- related damages; add the phrase `for each defendant and cause of
action' to clarify that a judge must apply H.R. 554's pleading requirements to
each specific claim which prevents a plaintiff from improperly using a claim
that is not barred by H.R. 554 as a means of pursuing obesity-related claims
that are barred by H.R. 554 against the same or other defendants.
Sponsor: Rep Sensenbrenner, F. James, Jr. [WI-5] (introduced 10/19/2005)
Cosponsors (None)
Latest Major Action: 10/19/2005 House amendment agreed to. Status: On
agreeing to the Sensenbrenner amendment (A001) Agreed to by voice vote.
2. H.AMDT.592 to H.R.554 An amendment numbered 2 printed in House
Report 109-249 to prohibit the food industry from initiating lawsuits against
any person for damages or other relief due to injury or potential injury based
on a person's consumption of a qualified food product and weight gain, obesity,
or any health condition that is associated with a person's weight gain or
obesity.
Sponsor: Rep Jackson-Lee, Sheila [TX-18] (introduced 10/19/2005) Cosponsors
(None)
Latest Major Action: 10/19/2005 House amendment not agreed to. Status: On
agreeing to the Jackson-Lee (TX) amendment (A002) Failed by recorded vote: 67 -
357 (Roll no. 529).
3. H.AMDT.593 to H.R.554 An amendment numbered 3 printed in House
Report 109-249 to exempt those who are age eight and under from the provisions
of this Act as it relates to large chain outlets.
Sponsor: Rep Filner, Bob [CA-51] (introduced 10/19/2005) Cosponsors
(None)
Latest Major Action: 10/19/2005 House amendment not agreed to. Status: On
agreeing to the Filner amendment (A003) Failed by recorded vote: 129 - 298 (Roll
no. 530).
4. H.AMDT.594 to H.R.554 An amendment numbered 4 printed in House
Report 109-249 to exempt State law enforcement actions from the impact of the
legislation to ensure that Attorneys General and State agencies can enforce
State consumer protection laws concerning mislabeling or other unfair and
deceptive trade practices.
Sponsor: Rep Scott, Robert C. [VA-3] (introduced 10/19/2005) Cosponsors
(None)
Latest Major Action: 10/19/2005 House amendment not agreed to. Status: On
agreeing to the Scott (VA) amendment (A004) Failed by recorded vote: 192 - 234 (Roll
no. 531).
5. H.AMDT.595 to H.R.554 An amendment numbered 5 printed in House
Report 109-249 to exempt lawsuits involving a dietary supplement relating to a
person's weight gain, obesity or any health condition associated with weight
gain or obesity.
Sponsor: Rep Waxman, Henry A. [CA-30] (introduced 10/19/2005) Cosponsors
(None)
Latest Major Action: 10/19/2005 House amendment not agreed to. Status: On
agreeing to the Waxman amendment (A005) Failed by recorded vote: 177 - 247 (Roll
no. 532).
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