2005 Regular Session
To: Judiciary A
By: Representative Bondurant, Upshaw
AN ACT TO PROVIDE CIVIL IMMUNITY FOR FOOD MANUFACTURERS AND SELLERS FOR ACTIONS FOR LIABILITY FOR WEIGHT GAIN OR OBESITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) Subject to subsection (2) of this section, a manufacturer, packer, distributor, carrier, holder, seller, marketer, promoter or advertiser of a food or an association that includes one or more manufacturers, packers, distributors, carriers, holders, sellers, marketers, promoters or advertisers of a food is not subject to civil liability for personal injury or death arising out of weight gain, obesity or a health condition associated with weight gain or obesity.
(2) Subsection (1) does not preclude civil liability for
personal injury or death based on either of the following:
(a) A material violation of an adulteration or misbranding requirement prescribed by a statute or regulation of this state or the United States that proximately caused the injury or death.
(b) A knowing and willful material violation of federal or state law applicable to the manufacturing, marketing, distribution, advertising, labeling or sale of food that proximately caused the injury or death.
(3) In an action for civil liability described in subsection
(2) of this section, the complaint shall state with particularity all of the following:
(a) The statute, regulation or other law of this state or the United States that was allegedly violated.
(b) The facts that are alleged to constitute a material
violation of the statute, regulation or law.
(c) The facts alleged to demonstrate that the violation proximately caused actual injury to the plaintiff or individual on whose behalf the plaintiff is bringing the action.
(d) If the plaintiff claims that subsection (2)(b) of this section applies, facts sufficient to support a reasonable inference that the conduct was committed with intent to deceive or injure consumers or with the actual knowledge that the conduct was injurious to consumers.
(4) In an action for civil liability described in subsection (2) of this section, all discovery and other proceedings shall be stayed while a motion to dismiss is pending unless the court finds on motion of a party that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party. While discovery is stayed under this subsection, unless otherwise ordered by the court upon a motion from the plaintiff, a party to the action with actual notice of the allegations in the complaint shall tender to the court in camera all documents, data compilations, including electronically recorded or stored data, and tangible objects that are in the custody or control of the party and that are relevant to the allegations or that may lead
to the discovery of relevant facts.
(5) A political subdivision of this state shall not file, prosecute or join, on its own behalf or on behalf of its citizens or another class of persons, a civil action described in this section for damages or other remedy against a person.
(6) As used in this section:
(a) "Food" means that term as defined in 21 USCS 321. (b) "Knowing and willful" means, with respect to a violation of federal or state law, that both of the following apply to the conduct constituting the violation:
(i) The conduct was committed with the intent to deceive or injure consumers or with actual knowledge that the conduct was injurious to consumers.
(ii) The conduct was not required by a regulation, order, rule or other pronouncement of, or a statute administered by, a federal, state or local government agency.
(c) "Person" means an individual, partnership, corporation, association or other legal entity.
(d) "Political subdivision" means a county, city, township or village.
SECTION 2. This act shall take effect and be in force from and after July 1, 2005, and shall apply to all causes of action filed on or after that date.