SENATE BILL 291

47th legislature - STATE OF NEW MEXICO - first session, 2005

INTRODUCED BY

Steve Komadina

AN ACT

RELATING TO TORTS; CREATING THE RIGHT TO EAT ENCHILADAS ACT; ELIMINATING CIVIL LIABILITY FOR HEALTH CONDITIONS CAUSED BY THE LONG-TERM CONSUMPTION OF FOOD; PROVIDING EXCEPTIONS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     Section 1. SHORT TITLE.--This act may be cited as the "Right to Eat Enchiladas Act".

     Section 2. PURPOSE OF ACT.--The purpose of the Right to Eat Enchiladas Act is to prevent frivolous lawsuits against manufacturers, packers, distributors, carriers, holders, sellers, marketers or advertisers of food that comply with applicable statutory and regulatory requirements.

     Section 3. PREVENTION OF FRIVOLOUS LAWSUITS.--Except as provided in Section 4 of the Right to Eat Enchiladas Act, a manufacturer, packer, distributor, carrier, holder, seller, marketer or advertiser of food, as defined in the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. 321(f), or an association of one or more of these entities, shall not be subject to civil liability under the laws of this state for any claim of injury arising out of weight gain, obesity, a health condition associated with weight gain or obesity or other generally known condition allegedly caused by or likely to result from the long-term consumption of food.

     Section 4. LIABILITY NOT PRECLUDED.--The Right to Eat Enchiladas Act does not preclude civil liability where the claim of injury due to weight gain, obesity, health condition associated with weight gain or obesity, or other generally known condition allegedly caused by or likely to result from the long-term consumption of food is based on adulteration or misbranding of food in violation of state or federal law and the claimed injury was proximately caused by that violation, or is based on any other violation of state or federal law applicable to the manufacturing, marketing, distribution, advertising, labeling or sale of food, provided that the violation is knowing and willful and the claimed injury was proximately caused by the violation.

     Section 5. PLEADING REQUIREMENTS.--In a cause of action for a claim brought under Section 4 of the Right to Eat Enchiladas Act, the complaint shall allege with particularity the following elements that are deemed to be a part of the substantive law of this state:

          A. the state or federal law that was violated;

          B. the facts that constitute a violation of the state or federal law;

          C. the facts demonstrating that the violation was the proximate cause of the injury; and

          D. when appropriate to the cause of action, facts sufficient to support a reasonable inference that the violation of law was knowing and willful.

     Section 6. APPLICABILITY.--The provisions of this act apply to all covered causes of action pending on the effective date of this act and to all causes of action filed after the effective date, regardless of when the cause of action arose.

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