Food Vendor Lawsuit Immunity Date: Current as of February 2005 As concern continues to mount about the growing obesity epidemic among both children and adults in the United States, legislators have responded to different voices in the debate. In many states, legislation has been introduced to limit the liability of food manufacturers, sellers, and others in the food distribution and marketing industry for claims resulting from individuals' obesity, weight gain, or health conditions related to obesity as a result of food consumption. Discussion of these bills focuses on: (1) Industry concerns about who is responsible for healthy choices in food consumption and the potential for food industry-focused tort litigation, (2) Public health concerns about the costs and health impact of obesity-related chronic conditions such as heart disease, cancer, stroke and diabetes (the first, second, third and sixth leading causes of death in the United States), and (3) Questions about the advisability of limiting access to potential remedies through the courts. Industry representatives argue that these bills will protect against frivolous lawsuits for obesity claims. Trial lawyers contend that court rules already provide for the early dismissal of frivolous cases and the award of attorney's fees. In one state, concerns have been raised that the proposed legislation conflicts with constitutional provisions that guarantee injured people open access to the courts. State and Federal Activity As of October 15, 2004, bills on this topic had been introduced in 25 states and enacted in 13 of those states. The 13 states that have enacted legislation to limit civil liability for obesity claims against food vendors and others in the food industry are Arizona, Colorado, Georgia, Florida, Idaho, Illinois, Louisiana, Michigan, Missouri, South Dakota, Tennessee, Utah, and Washington State. Proposed food vendor lawsuit immunity legislation died in committee in Mississippi, failed to pass the House in California and New Hampshire, and was vetoed by the Governor in Wisconsin. Similar bills were introduced in state legislatures in eight other states in 2004 (Florida, Iowa, Kentucky, Nebraska, New Jersey, New York, Ohio, and South Dakota) and in one state in 2003 (Pennsylvania). Many state-level proposals are modeled on federal legislation introduced in 2003, either the Commonsense Consumption Act (S 1428) or the Personal Responsibility in Food Consumption Act (HR 339). The chart below details bills introduced in state legislatures in 2003 and 2004 that would provide some degree of immunity from civil lawsuits against food vendors, distributors, and marketers, and others in the food industry. Additional bills on this topic had been introduced or reintroduced in 16 states as of February 16, 2005. A widely publicized obesity lawsuit by two teenage girls against food vendor McDonald's Corporation was dismissed by a Federal District Court in September 2003. On January 26, 2005, the U.S. Court of Appeals for the 2nd Circuit overruled the lower federal court decision and reinstated portions of the case, ruling that the girls should be given an opportunity to show that there was a link between their obesity and eating McDonald’s foods.
2003 - 2004 state legislation on civil immunity for food vendors (Listed below is the latest reported action on bills introduced in 2003-2004)
| Arizona | AZ HB 2220 (2004) (Enacted, signed by the governor, 4/12/04, Chapter 67) Provides that food products may not be classified as defective and unreasonably dangerous for product liability purposes; and that there is no duty to warn purchasers that consumption of a food product may cause health problems if consumed excessively. Creates an affirmative defense for repeated consumption of a food product as a proximate cause of injury. | | California | CA AB 173 (New bill for 2005, Introduced 1/27/05, To Assembly Committee on Judiciary) Would provide civil liability immunity for food manufacturers, packers, distributors, carriers, sellers or associations for claims arising from weight gain, obesity, or a health condition associated with weight gain or obesity from the long-term consumption of the food. CA AB 1909 (2004) (Failed to pass judiciary committee, 5/4/04) Would have exempted manufacturers, distributors, or sellers of food or nonalcoholic beverages intended for human consumption from civil liability for personal injury or wrongful death based on an individual's consumption of food or nonalcoholic beverages leading to an individual's weight gain, obesity, or a health condition related to weight gain or obesity. | | Colorado | CO HB 1150 (2004) (Enacted, signed by the governor, 5/04, Chapter 229) Creates the Commonsense Consumption Act, limiting the civil liability of food manufacturers, distributors, sellers, or retailers for claims resulting from a person's obesity, weight gain, or health conditions related to obesity resulting from a person's long-term consumption of a food or beverage. | | Connecticut | CT HB 6156 (New bill for 2005, Introduced 1/24/05, To Joint Committee on Judiciary) Would prohibit class action lawsuits for based on obesity claims. | | Florida | FL HB 333 (2004) (Enacted, signed by the governor, 5/21/04, Chapter No. 2004-88) Provides food manufacturers, sellers, and distributors with immunity from civil liability for personal injury or wrongful death based upon long-term consumption of certain foods or nonalcoholic beverages under certain circumstances; and provide limitations on that immunity if required nutritional content information was not provided or if false or misleading information was provided to the public. | | Georgia | GA HB 1519 (2004) (Enacted, Act 590, 5/14/04) Creates the Commonsense Consumption Act, prohibiting civil lawsuits against food manufacturers, marketers, distributors, advertisers, sellers, and trade associations for claims resulting from a person's obesity, weight gain, or health conditions related to weight gain or obesity. | | Idaho | ID HB 590 (2004) (Enacted , Chaptered 4/2/04, Chapter 380) Creates the Commonsense Consumption Act, prohibiting civil lawsuits against food manufacturers, marketers, distributors, advertisers, sellers, and trade associations for claims resulting from a person's obesity, weight gain, or health conditions related to weight gain or obesity. | | Illinois | IL HB 3981 (2004) (Enacted, signed by governor, 7/30/04, Public Act No. 93-848) Creates the Commonsense Consumption Act, providing that no person shall bring a qualified civil action in State court against any seller of a food product. Defines "qualified civil action" to include a lawsuit against a food seller on a claim of injury resulting from a person's weight gain, obesity, or any obesity-related health condition. | | Iowa | IA SB 2186 (2004) (Last action, 3/2/04, in Senate Committee on Judiciary) Would limit the civil liability of manufacturers, distributors, and sellers of food or nonalcoholic relating to the consumption of food or nonalcoholic beverage products unless the plaintiff proves that at the time of sale, the product was not in compliance with applicable federal or state statutory and regulatory requirements. | | Kansas | KS SB 75 (New bill for 2005, Introduced 1/24/05)
Would provide immunity from civil liability for claims relating to weight gain or obesity. | | Kentucky | KY SB 103 (New bill for 2005, Last action 2/10/05, Passed Senate, To House) Would create the Commonsense Consumption Act excluding food establishments from civil liability for claims arising out of weight gain or obesity, for claims pending on the effective date and all claims filed thereafter regardless of when the claim arose. KY SB 176 (2004) (Last action, 2/19/04, to Senate Committee on Judiciary) Would provide immunity from civil liability to food manufacturers, packers, distributors, carriers, holders, sellers, marketers, and advertisers for any claim arising out of weight gain, obesity, a health condition associated with weight gain or obesity, or other generally known condition caused by or likely to result from long-term consumption of food. | | Louisiana | LA HB 518 (2003) (Enacted, signed into law by the governor 1/30/04, Act 158) Limits the liability of manufacturers, distributors, and sellers of food and non-alcoholic beverage products. | | Maine | ME SB 200 (New bill for 2005, Last action 2/8/05, Referred by House to Joint Committee on Judiciary in concurrence) Would create a defense from liability for persons or businesses serving food, for claims of obesity of or excessive weight gain by consumers as a result of their long-term consumption of food from that person or entity, with exceptions for altered or misbranded food items. | | Maryland | MD HB 15 (New bill for 2005, Last action 2/14/05, Reported unfavorably from House Committee on Judiciary.) Would prohibit civil lawsuits against food sellers based on a claim of injury or death resulting from a person's weight gain, obesity, or a related health condition. MD SB 315 (New bill for 2005, Introduced 1/31/05, To Senate Committee on Judicial Proceedings) Would prohibit civil lawsuits against food sellers based on a claim of injury or death resulting from a person's weight gain, obesity, or a related health condition. | | Michigan | MI HB 5809 (2003) (Enacted, signed into law by the governor 10/7/04, Public Act No. 367) Provides immunity from civil liability for food manufacturers, packers, distributors, carriers, holders, sellers, marketers, or advertisers or an association that include one or more of these entities for personal injury or death 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. | | Minnesota | MN HB118 (New bill for 2005, Introduced 1/10/05, To House Committee on Agriculture
and Rural Development) Would prohibit civil lawsuits against specified persons for weight gain resulting from the consumption of certain foods. MN SB 631 (New bill for 2005, Introduced 1/31/05, To Senate Committee on Judiciary) Would prohibit civil lawsuits against certain persons for weight gain resulting from the consumption of certain foods. | | Mississippi | MS HB 1054 (New bill for 2005, Introduced 1/17/05, To House Committee on Judiciary) Would limit the civil liability of food manufacturers and sellers for weight gain claims. MS SB 2910 (2004) (Died in committee 3/9/04) Would have limited civil lawsuits against food manufacturers, marketers, distributors, advertisers, sellers, and trade associations for claims resulting from a person's obesity, weight gain, or health conditions related to weight gain or obesity. | | Missouri | MO HB 1115 (2004) (Enacted, signed by governor, 6/25/04) Creates the Commonsense Consumption Act, prohibiting civil lawsuits against manufacturers, distributors, and sellers of food for any claims arising out of weight gain, obesity, or health conditions associated with weight gain or obesity. Exceptions to this prohibition are provided for certain violations of state and federal law. | | Nebraska | NE LB 1046 (2004) (Last action, placed on general file as amended, 3/11/04) Would provide limitations on civil liability for specified claims against manufacturers, distributors, and sellers of food or nonalcoholic beverages for any claims arising out of weight gain, obesity, or health conditions associated with weight gain or obesity based on an individual's long-term consumption of food or nonalcoholic beverages. | | Nevada | NV BDR748 (Bill draft request filed 10/25/04) Would protect specified food manufacturers and sellers from “frivolous” lawsuits arising from weight gain or obesity. | | New Hampshire | NH SB 408 (2004) (Failed to pass House, 4/15/04) Would have exempted food sellers, manufacturers, distributors, packers, advertisers, and marketers from civil liability for individuals' weight gain, obesity, or health condition related to obesity. | | New Jersey | NJ AB 3514 (New bill, Introduced 11/15/04, Last action 11/22/04, To Assembly Committee on Judiciary) Would limit the liability of food producers, manufacturers, packers, distributors, carriers, holders, sellers, marketers and advertisers for claims for weight gain or obesity. NJ SB 1462 (2004) (Last action, 11/8/04, From Senate Committee on Judiciary as substituted) Would prohibit lawsuits against food manufacturers or sellers on the grounds that food consumption caused a person's weight gain or obesity. | | New Mexico | NM HB 553 (New bill for 2005, Introduced 1/27/05, To House Committee on Judiciary) Would create the “Right to Eat Enchiladas Act” eliminating civil liability for health conditions caused by long-term food consumption. | | New York | NY AB 11336 (2004) (Last action, 5/28/04, to Assembly Committee on Codes) Would define certain lawsuits against manufacturers, packers, distributors, carriers, holders or sellers of food as frivolous if alleging injury caused by the use of food or deceptive trade practices in connection with a person's purchase or consumption of food. | | North Dakota | ND HB 1241 (New bill for 2005, Passed House, Last action, 2/7/05, To Senate Committee on Judiciary) Would limit the liability of food producers, manufacturers, packers, distributors, carriers, holders, sellers, marketers, trade associations, or advertisers for claims of injury resulting from weight gain, obesity, or any health condition related to weight gain. | | Ohio | OH HB 350 (2003) (Last action, 5/26/04, Read on concurrence. Informally passed.) Would provide immunity from civil damages for food manufacturers, sellers, and trade associations for claims resulting from a person's obesity or weight gain or any health condition related to obesity, weight gain, or cumulative consumption. OH SB 161 (2003-2004) (Last action, 1/7/04, to Senate Committee on Agriculture) Would provide a qualified immunity from civil damages to a manufacturer or supplier of a food or a non- alcoholic beverage for a claim of weight gain, obesity, or a related health condition resulting from the consumption of the food or non-alcoholic beverage unless certain circumstances are proven by a claimant. | | Oklahoma | OK HB 1554 (New bill for 2005, Last action 2/8/05, To House Committee on Judiciary) Would create the Commonsense Consumption Act to prevent “frivolous” lawsuits against manufacturers, sellers, holders, marketers or advertisers of food products that comply with applicable statutory and regulatory requirements. | | Pennsylvania | PA HB 2912 (New bill introduced 10/14/04, Last action 10/14/04, To House Committee on Judiciary) Would provide for food purveyor civil immunity.
PA SB 1260 (New bill introduced 11/5/04, Last action 11/5/04, To Senate Committee on Judiciary) Would provide civil immunity from liability for food purveyors under certain circumstances PA HB 1986 (2003) (Last action, 9/16/03, to House Committee on Judiciary) To create the Personal Responsibility in Food Consumption Act aimed at preventing lawsuits deemed frivolous against manufacturers, distributors, or sellers of food and nonalcoholic beverage products that comply with statutory and regulatory requirements. | | South Carolina | SC HB3118 (New bill introduced 12/8/04, Last action 1/11/05, To House Committee on Judiciary) Would provide immunity from liability for food manufacturers, packers, distributors, carriers, holders, sellers, marketers, and advertisers for claims relating to weight gain or obesity; with exceptions for claims based on adulteration or misbranding of food labels. | | South Dakota | SD HB 1282 (2004) (Enacted, filed with SD Secretary of State 3/9/04) Disallows recovery on civil claims for injury or death against a manufacturer, seller, trade association, livestock producer, or retailer resulting from an individual's weight gain, obesity, or a health condition resulting from the individual's long-term consumption of a qualified product. | | Tennessee | TN HB 3041 (2004) (Substituted on House floor by S 2379) TN SB 2379 (2004) (Enacted, chaptered as law 4/30/04, Chapter 570) Enacts the Commonsense Consumption Act to prohibit civil lawsuits for damages against a manufacturer, packer, distributor, seller or advertiser of food claiming weight gain or obesity caused by long-term consumption of the food unless: (1) The alleged weight gain is a direct result of violation of state or federal regulations on food content and labeling; or (2) The weight gain is a direct result of intentional violation of state or federal law on manufacturing, marketing, distribution, advertising, labeling or selling the food. | | Utah | UT SB 214 (2004) (Enacted and chaptered as Chapter 194, 3/19/04) Provides manufacturers, packers, distributors, carriers, holders, sellers, marketers,
and advertisers of food with immunity from civil liability for obesity and weight gain claims, while allowing an exception for food that does not meet state or federal standards; and requires that any civil actions commenced plead with particularity the injury and the proximate cause. | | Virginia | VA HB 1617 (New bill, Prefiled 12/16/04, Last action 1/28/05, To Senate Committee on Courts of Justice) Would prohibit product liability actions against food manufacturers or sellers for qualified food products, for claims of injury, potential injury or death resulting from consumption of a food product and weight gain, obesity or any health condition related to weight gain or obesity. | | Washington | WA SB 6601 (2004) (Enacted and chaptered as Chapter 139, 3/26/04) Prohibits lawsuits against manufacturers, packers, distributors, carriers, holders, sellers, marketers, or advertisers of food products that comply with applicable statutory and regulatory requirements for claims arising out of weight gain, obesity, or health conditions associated with weight gain or obesity, caused by or allegedly likely to result from long-term consumption of food. | | Wisconsin | WI AB 595 (2003-2004) (Vetoed by the governor, 3/17/04) WI SB 289 (2003-2004)(Failed to pass pursuant to Senate Joint Resolution 1, 3/31/04) Both bills would have created a civil liability exemption for food manufacturers, marketers, packers, advertisers, distributors, or sellers for claims resulting from a person's weight gain or obesity or health condition related to weight gain or obesity caused by the consumption of food. | If you have questions, find errors or omissions; please feel free to contact me. Amy Winterfeld, JD
amy.winterfeld@ncsl.org
Senior Policy Specialist
Health Program
National Conference of State Legislatures
7700 East First Place
Denver, Colorado 80230
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