SB2813 93RD GENERAL ASSEMBLY

LRB093 20571 LCB 46381 b

93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004
SB2813

Introduced 2/5/2004, by Kirk W. Dillard

SYNOPSIS AS INTRODUCED:

New Act

Creates the Commonsense Consumption Act. Exempts a manufacturer, packer, distributor, carrier, holder, seller, marketer, or advertiser of a food product from civil liability for any claim arising out of weight gain, obesity, or other generally known condition allegedly likely to result from long-term consumption of the food product. Provides exceptions to the exemption. Sets out pleading requirements for claims filed under the exceptions.

A BILL FOR

AN ACT concerning civil liability.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Commonsense Consumption Act.

Section 5. Legislative finding. The General Assembly finds that it is in the best interest of this State to reduce the number of frivolous lawsuits in Illinois by preventing the filing of frivolous claims against manufacturers, packers, distributors, carriers, holders, sellers, marketers, or advertisers of food products that comply with applicable statutory and regulatory requirements.

Section 10. Definitions. As used in this Act:

"Claim" means any claim by or on behalf of a natural person as well as any derivative or other claim arising from, asserted by, or on behalf of any corporation, company, association, firm, partnership, or other entity, including any governmental entity or private attorney general.

"Generally known condition allegedly caused by or allegedly likely to result from long-term consumption" means a condition generally known to result or to likely result from the cumulative effect of consumption and not from a single instance of consumption.

"Knowing or willful violation of federal or State law" means that:

(1) the conduct constituting the violation was committed with the intent to deceive or injure consumers or with actual knowledge that the conduct was injurious to consumers; and

(2) the conduct constituting the violation was not required by regulations, orders, rules, or other pronouncements of or statutes administered by a federal, State, or local governmental agency.

Section 15. Exemption. Except as provided in Section 20, a manufacturer, packer, distributor, carrier, holder, seller, marketer, or advertiser of a food (as defined in Section 201(f) of the Federal Food Drug and Cosmetic Act (21 U.S.C. 321(f)), or an association of one or more such entities shall not be subject to civil liability under any State law, including all statutes, regulations, rules, common law, public policies, court or administrative decisions or decrees, or other State actions having the effect of law, for any claim arising out of weight gain, obesity, or other generally known condition allegedly caused by or allegedly likely to result from long-term consumption of the food.

Section 20. Exception to exemption.

(a) The exemption provided in Section 15 of this Act does not preclude civil liability where the claim of weight gain, obesity, health condition associated with weight gain or obesity, or other generally known condition allegedly caused by or allegedly likely to result from long-term consumption of the food is based on:

(1) a material violation of an adulteration or misbranding requirement prescribed by statute or regulation of this State or the United States and the claimed injury was proximately caused by the violation; or

(2) any other material violation of federal or State law applicable to the manufacturing, marketing, distribution, advertising, labeling, or sale of a food, provided that the violation is knowing and willful, and the claimed injury was proximately caused by the violation.

(b) The provisions of Section 15 of this Act shall not preclude civil liability for breach of express contract or express warranty in connection with the purchase of a food.

Section 25. Pleading requirements.

(a) In any petition stating a cause of action under subdivision (a)(1) of Section 20 of this Act, the petitioner shall state with particularity the following:

(1) the statute, regulation, or other State or federal law that was allegedly violated;

(2) the facts that are alleged to constitute a material violation of the statute or regulation; and

(3) the facts alleged to demonstrate that the violation proximately caused actual injury to the plaintiff.

(b) In any petition stating a cause of action under subdivision (a)(2) of Section 20 of this Act, the petitioner shall state with particularity the following:

(1) the statute, regulation, or other State or federal law that was allegedly violated;

(2) the facts that are alleged to constitute a material violation of the statute or regulation;

(3) the facts alleged to demonstrate that the violation proximately caused actual injury to the plaintiff; and

(4) facts sufficient to support a reasonable inference that the violation occurred with the intent to deceive or injure consumers or with actual knowledge that the violation was injurious to consumers.

(c) For purposes of applying this Act, the pleading requirements under this Section are deemed part of State substantive law and not merely procedural provisions.

Section 30. Discovery. In any action brought under Section 20 of this Act, all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss unless the court finds, upon the 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 under this Section and 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 party 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 Illinois rules of civil procedure.

Section 35. Application. The provisions of this Act shall apply to all covered claims pending on or filed after the effective date of this Act, regardless of when the claim arose.