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F I S C A L I M P A C T R E P O R T

SPONSOR Gardner

ORIGINAL DATE

LAST UPDATED

2/08/07

HB 747

SHORT TITLE Personal Responsibility in Food Consumption

SB

ANALYST Ortiz

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Duplicates SB 85

Relates to SB 26

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney General’s Office (AGO)

Public Education Department (PED)

SUMMARY

Synopsis of Bill

House Bill 747 attempts to protect food manufacturers, producers, packers, distributors, carriers,

holders, sellers, marketers or advertisers from civil liability arising from claims 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. The bill seeks to prevent “Frivolous Lawsuits" by providing that the food

industry would not be subject to civil liability arising from such claims.

The bill excludes from its protection causes of action alleging misbranding or adulteration of

food, or violations of laws applicable to food, as long as the violation was knowing and willful

and the injury was proximately caused by the violation. In cases alleging a violation of law, the

bill sets forth detailed pleading requirements.

House Bill 747 – Page

2

The bill also provides for a stay of discovery and all other proceedings while a motion to dismiss

is pending. It would require a party to treat a request for production of documents during the

pendency of such a stay as a continuing request.

SIGNIFICANT ISSUES

According to the AGO, the bill attempts to set forth pleading requirements and to govern

discovery and motion practice in the New Mexico courts. It also appears to be an attempt to

restrict causes of action for the consequences of food consumption. Normally those subjects are

exclusively within the purview of the courts. Legislative attempts to govern judicial practice and

procedure may conflict with Article VI Section 1 of the New Mexico Constitution which vests

judicial power in the courts.

OTHER SUBSTANTIVE ISSUES

The Public Education Department identifies the following issues with this bill.

1. Given that the bill eliminates negligence as a legal theory when someone seeks to claim long-

term consumption of food as having caused weight gain or other health injury, substituting a

willful and knowing proof, perhaps the bill should be amended to impose strict liability if a

person prevails in proving such a case.

2. Section 3, Page 2 of the bill does not define “long-term consumption of food," which is the

cornerstone to assessing liability under this bill. The bill distinguishes a single instance of

consumption (which is not regulated by this bill) from what it describes as the cumulative effect

of consumption (which is regulated by this bill).

3. Section 4, Page 3, Lines 3 and 4 refer to Section “21 U.S.C.A. 321(f)", which is a subsection

of a federal law. Article IV, Section 18 of the New Mexico Constitution advises against

incorporating a law by reference except for federal tax laws. The referenced federal law contains

a definition of “food" that could easily be included in the bill.

4. Section 8, Page 5, Lines 16 - 19 of the bill make the bill applicable to all cases filed on or

after the effective date of the Act. Should this bill become law, any pending cases alleging legal

theories covered by this bill could not constitutionally be considered to be within the scope of the

new law because Article IV, Section 34 of the New Mexico Constitution provides that, “No act

of the legislature shall affect the right or remedy of either party, or change the rules of evidence

or procedure, in any pending case."

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

Senate Bill 85 duplicates House Bill 747. Senate Bill 26 contains many duplicate provisions.

ALTERNATIVES

The legislature could confer immunity from liability on the food service industry for certain

specific injuries caused by food consumption, as opposed to seeking to regulate assertion of

certain claims characterized as “frivolous".

House Bill 747 – Page

3

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

Members of the public would still have a cause of action against the food industry based upon

theories of negligence or even violations of implied or actual warranties.

EO/csd