SENATE BILL 85
48th legislature - STATE OF NEW MEXICO - first session, 2007
INTRODUCED BY
Mary Jane M. Garcia
AN ACT
RELATING TO TORTS; CREATING THE PERSONAL RESPONSIBILITY IN FOOD CONSUMPTION ACT; ELIMINATING LIABILITY FOR CLAIMS BASED ON THE LONG-TERM CONSUMPTION OF FOOD; PROVIDING EXCEPTIONS AND A STAY PENDING A MOTION TO DISMISS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Personal Responsibility in Food Consumption Act".
Section 2. PURPOSE OF ACT.--The purpose of the Personal Responsibility in Food Consumption Act is to encourage personal responsibility in food consumption and to prevent frivolous lawsuits against manufacturers, producers, packers, distributors, carriers, holders, sellers, marketers or advertisers of food, or an association of one or more of those entities, that comply with applicable statutory and regulatory requirements.
Section 3. DEFINITIONS.--As used in the Personal Responsibility in Food Consumption Act:
A. "claim" means a claim by or on behalf of a person or a derivative or other claim arising from the claim of the person asserted by or on behalf of another person, corporation, company, association, firm, partnership, society, joint-stock company or other entity, including a governmental entity or private attorney general;
B. "generally known condition allegedly caused by or allegedly likely to result from the 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; and
C. "knowing and willful violation of federal, state or local law" means:
(1) the conduct constituting the violation was committed with the intent to deceive or injure a consumer of food or with the actual knowledge that the conduct was injurious to a consumer of food; and
(2) the conduct constituting the violation was not required by state, local or federal government law, statute, rule, regulation, order or other pronouncement.
Section 4. PREVENTION OF FRIVOLOUS LAWSUITS.--Except as provided in Section 5 of the Personal Responsibility in Food
Consumption Act, a manufacturer, producer, 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 those entities, shall not be subject to civil liability for a 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 the long-term consumption of food.
Section 5. LIABILITY NOT PRECLUDED.--The Personal Responsibility in Food Consumption Act does not preclude civil liability where a cause of action brought on a claim of injury due to 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 the long-term consumption of food:
A. includes, as an element of the cause of action, the adulteration or misbranding of food in violation of federal, state or local law, statute, rule, regulation, order or other pronouncement and the claimed injury was proximately caused by that violation; provided that nothing in this subsection shall be construed to create new, or expand existing, private rights under adulteration or misbranding laws, statutes, rules, regulations, orders or other pronouncement, nor shall this subsection be construed to interfere with any governmental entity's exclusive or primary jurisdiction to find or declare a violation of those laws, statutes, rules, regulations, orders or other pronouncements; or
B. is based on any other violation of federal, state or local law applicable to the manufacturing, production, marketing, distribution, advertising, labeling or sale of food; provided that the violation is a knowing and willful violation of federal, state or local law and the claimed injury was proximately caused by the violation.
Section 6. PLEADING REQUIREMENTS.--In a cause of action for a claim brought under Section 5 of the Personal Responsibility in Food Consumption 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 law that was violated;
B. the facts that constitute a violation of federal, state or local 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 a knowing and willful violation of federal, state or local law.
Section 7. STAY PENDING MOTION TO DISMISS.--In an action not precluded pursuant to Section 5 of the Personal Responsibility in Food Consumption Act, all discovery and other proceedings shall be stayed during the pendency of a motion to dismiss unless the court finds upon the motion of a party that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party. During the pendency of a stay of discovery, unless otherwise ordered by the court, a party to an 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 that 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 the New Mexico Rules of Civil Procedure for the District Courts.
Section 8. APPLICABILITY.--The provisions of the Personal Responsibility in Food Consumption Act apply to all covered causes of action filed on or after the effective date of this act, regardless of when the cause of action arose.
Section 9. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2007.
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