BILL REQ. #:  S-4652.1 

READ FIRST TIME 02/09/04.   

     AN ACT Relating to obesity lawsuits; adding a new section to chapter 7.72 RCW; and creating new sections.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature intends by this act to prevent frivolous lawsuits against manufacturers, packers, distributors, carriers, holders, sellers, marketers, or advertisers of food products that comply with applicable statutory and regulatory requirements.

NEW SECTION.  Sec. 2   A new section is added to chapter 7.72 RCW to read as follows:
     (1) Except as exempted in subsection (2) of this section, a manufacturer, packer, distributor, carrier, holder, seller, marketer, or advertiser of a food, or an association of one or more such entities, shall not be subject to civil liability arising under any law of this state, including all statutes, regulations, rules, common law, public policies, court or administrative decisions or decrees, or other state action having the effect of law, for any claim arising out of weight gain, obesity, a 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 food.
     (2) Subsection (1) of this section 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 food is based on: (a) A material violation of an adulteration or misbranding requirement prescribed by statute or rule of the state of Washington or the United States and the claimed injury was proximately caused by such violation; or (b) any other material violation of federal or state law applicable to the manufacturing, marketing, distribution, advertising, labeling, or sale of food, provided that such violation is knowing and willful, and the claimed injury was proximately caused by such violation.
     (3) In any action exempted under subsection (2)(a) of this section, the complaint initiating such action shall state with particularity the following: The statute, regulation, or other law of the state of Washington or of the United States that was allegedly violated; the facts that are alleged to constitute a material violation of such statute or regulation; and the facts alleged to demonstrate that such violation proximately caused actual injury to the plaintiff. In any action exempted under subsection (2)(b) of this section, in addition to the foregoing pleading requirements, the complaint initiating such action shall state with particularity facts sufficient to support a reasonable inference that the violation was with the intent to deceive or injure consumers or with the actual knowledge that such violation was injurious to consumers. For purposes of applying this section, the pleading requirements of this subsection are hereby deemed part of the substantive law of the state of Washington and not merely in the nature of procedural provisions.
     (4) In any action exempted under subsection (2) of this section, 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 pursuant to this subsection, unless otherwise ordered by the court, any party to the action with actual notice of the allegations contained in the complaint shall treat all documents, data compilations including electronically recorded or stored data, and tangible objects that are in the custody or control of such party 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 Washington court rules.
     (5) The provisions of this section shall apply to all covered claims pending on the effective date of this act and all claims filed thereafter, regardless of when the claim arose.
     (6) For purposes of this section:
     (a) "Claim" means any claim by or on behalf of a natural person, as well as any derivative or other claim arising therefrom asserted by or on behalf of any individual, corporation, company, association, firm, partnership, society, joint stock company, or any other entity, including any governmental entity or private attorney general.
     (b) "Food" means "food" as defined in section 201(f) of the federal food, drug, and cosmetic act (21 U.S.C. 321(f)).
     (c) "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.
     (d) "Knowing and willful violation" means that: (i) The conduct constituting the violation was committed with the intent to deceive or injure consumers or with actual knowledge that such conduct was injurious to consumers; and (ii) the conduct constituting the violation was not required by regulations, orders, rules, or other pronouncement of, or any statute administered by, a federal, state, or local government agency.

NEW SECTION.  Sec. 3   This act may be cited as the commonsense consumption act.