S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4426

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 23, 2009
                               ___________

Introduced  by  Sen.  O. JOHNSON  -- read twice and ordered printed, and
  when printed to be committed to the Committee on Judiciary

AN ACT to amend the general obligations law, in relation to  obligations
  of care of purveyors of food

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Article 9 of the general  obligations  law  is  amended  by
adding a new title 3 to read as follows:
                                 TITLE 3
                            PURVEYORS OF FOOD
SECTION 9-301. SHORT TITLE.
        9-303. DEFINITIONS.
        9-305. PURVEYORS  OF  FOOD THAT COMPLY WITH THE APPLICABLE STATE
                 AND FEDERAL LAWS.
  S 9-301. SHORT TITLE. THIS TITLE SHALL BE KNOWN AND MAY  BE  CITED  AS
THE "COMMONSENSE CONSUMPTION ACT".
  S 9-303. DEFINITIONS. FOR THE PURPOSES OF THIS TITLE:
  1.  "CLAIM"  SHALL MEAN ANY CLAIM BY OR ON BEHALF OF A NATURAL PERSON,
AS WELL AS ANY DERIVATIVE OR OTHER CLAIM ARISING THEREFROM  ASSERTED  BY
OR ON BEHALF OF ANY OTHER PERSON.
  2.  "GENERALLY KNOWN CONDITION ALLEGEDLY CAUSED BY OR ALLEGEDLY LIKELY
TO RESULT FROM LONG-TERM CONSUMPTION" SHALL MEAN A  CONDITION  GENERALLY
KNOWN  TO  RESULT  OR  LIKELY  TO  RESULT  FROM THE CUMULATIVE EFFECT OF
CONSUMPTION, AND NOT FROM A SINGLE INSTANCE OF CONSUMPTION.
  3. "KNOWING AND WILLFUL VIOLATION OF FEDERAL OR STATE LAW" SHALL  MEAN
THAT:
  A.  THE  CONDUCT  CONSTITUTING  THE  VIOLATION  WAS COMMITTED WITH THE
INTENT TO DECEIVE OR INJURE CONSUMERS OR WITH ACTUAL KNOWLEDGE THAT SUCH
CONDUCT WAS INJURIOUS TO CONSUMERS; AND

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08361-01-9

S. 4426                             2
              

  B. THE CONDUCT CONSTITUTING THE VIOLATION  WAS  NOT  REQUIRED  BY  THE
RULES, ORDERS, OR OTHER PRONOUNCEMENT OF, OR ANY LAW ADMINISTERED BY ANY
FEDERAL, STATE OR LOCAL AGENCY.
  4.  "OTHER  PERSON"  SHALL  MEAN  ANY INDIVIDUAL, CORPORATION, LIMITED
LIABILITY COMPANY,  ASSOCIATION,  FIRM,  PARTNERSHIP  OR  OTHER  ENTITY,
INCLUDING ANY GOVERNMENTAL ENTITY.
  S  9-305.  PURVEYORS OF FOOD THAT COMPLY WITH THE APPLICABLE STATE AND
FEDERAL LAWS. 1. EXCEPT AS OTHERWISE PROVIDED IN SUBDIVISION TWO OF THIS
SECTION, A MANUFACTURER, PACKER, DISTRIBUTOR, CARRIER,  HOLDER,  SELLER,
MARKETER  OR  ADVERTISER  OF  FOOD, AS DEFINED IN SECTION 201 (F) OF THE
FEDERAL FOOD DRUG AND COSMETIC ACT (21 U.S.C. 321 (F)),  OR  AN  ASSOCI-
ATION  OF  ONE  OR MORE SUCH ENTITIES, SHALL NOT BE SUBJECT TO ANY CIVIL
ACTION FOR ANY 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
LONG-TERM CONSUMPTION OF FOOD.
  2.  SUBDIVISION  ONE OF THIS SECTION SHALL NOT PRECLUDE A CIVIL ACTION
WHERE THE CLAIM OF WEIGHT GAIN,  OBESITY,  HEALTH  CONDITION  ASSOCIATED
WITH WEIGHT GAIN OR OBESITY, OR OTHER GENERALLY KNOWN CONDITION ALLEGED-
LY CAUSED BY OR ALLEGEDLY LIKELY TO RESULT FROM LONG-TERM CONSUMPTION OF
FOOD WHEN SUCH CLAIM:
  A.  INCLUDES AS AN ELEMENT OF THE CAUSE OF ACTION A MATERIAL VIOLATION
OF AN ADULTERATION OR MISBRANDING REQUIREMENT PRESCRIBED BY  FEDERAL  OR
STATE  LAW  OR REGULATION, AND THE CLAIMED INJURY WAS PROXIMATELY CAUSED
BY SUCH VIOLATION; OR
  B. IS BASED ON ANY OTHER MATERIAL VIOLATION OF FEDERAL  OR  STATE  LAW
APPLICABLE  TO  THE MANUFACTURING, MARKETING, DISTRIBUTION, ADVERTISING,
LABELING OR SALE OF FOOD, PROVIDED THAT SUCH VIOLATION WAS  KNOWING  AND
WILLFUL,   AND  THE  CLAIMED  INJURY  WAS  PROXIMATELY  CAUSED  BY  SUCH
VIOLATION.
  3. A. IN ANY ACTION AUTHORIZED PURSUANT TO PARAGRAPH A OF  SUBDIVISION
TWO  OF  THIS  SECTION, THE COMPLAINT SHALL STATE WITH PARTICULARITY FOR
EACH DEFENDANT AND CAUSE OF ACTION THE FOLLOWING:
  (1) THE PROVISION OF FEDERAL OR STATE LAW,  RULE  OR  REGULATION  THAT
ALLEGEDLY CREATED THE CAUSE OF ACTION;
  (2) EACH ELEMENT OF THE CAUSE OF ACTION AND THE SPECIFIC FACTS ALLEGED
TO SATISFY EACH ELEMENT OF THE CAUSE OF ACTION; AND
  (3)  THE  SPECIFIC FACTS THAT ALLEGEDLY DEMONSTRATE THAT THE VIOLATION
OF THE PROVISION OF FEDERAL OR STATE LAW, RULE OR REGULATION PROXIMATELY
CAUSED ACTUAL INJURY TO THE PLAINTIFF.
  B. IN ANY ACTION AUTHORIZED PURSUANT TO PARAGRAPH B OF SUBDIVISION TWO
OF THIS SECTION, THE COMPLAINT SHALL COMPLY WITH THE PROVISIONS OF PARA-
GRAPH A OF THIS SUBDIVISION AND THE  COMPLAINT  COMMENCING  SUCH  ACTION
SHALL  STATE WITH PARTICULARITY FACTS SUFFICIENT TO SUPPORT A REASONABLE
INFERENCE THAT THE VIOLATION  WAS  WITH  INTENT  TO  DECEIVE  OR  INJURE
CONSUMERS OR WITH THE ACTUAL KNOWLEDGE THAT SUCH VIOLATION WAS INJURIOUS
TO CONSUMERS.
  4.  A.  IN  ANY  ACTION AUTHORIZED PURSUANT TO SUBDIVISION TWO OF THIS
SECTION, THE OBLIGATION OF ANY PARTY OR NON-PARTY TO MAKE DISCLOSURES OF
ANY KIND UNDER ANY APPLICABLE LAW, RULE  OR  ORDER,  OR  TO  RESPOND  TO
DISCOVERY  REQUESTS OF ANY KIND, AS WELL AS ALL PROCEEDINGS UNRELATED TO
ADJUDICATING A MOTION TO DISMISS, SHALL BE STAYED PRIOR TO THE TIME  FOR
FILING  A  MOTION  TO DISMISS AND DURING THE PENDENCY OF ANY SUCH MOTION
UNLESS THE COURT FINDS UPON MOTION OF ANY PARTY THAT  A  RESPONSE  TO  A
PARTICULARIZED DISCOVERY REQUEST IS NECESSARY TO PRESERVE EVIDENCE.

S. 4426                             3

  B.  DURING  THE  PENDENCY  OF  ANY  STAY OF DISCOVERY PURSUANT TO THIS
SUBDIVISION, THE RESPONSIBILITIES OF THE  PARTIES  WITH  REGARD  TO  THE
TREATMENT OF ALL DOCUMENTS, DATA COMPILATIONS AND TANGIBLE OBJECTS SHALL
BE  GOVERNED  BY  THE  PROVISIONS OF THE CIVIL PRACTICE LAW AND RULES. A
PARTY  AGGRIEVED  BY THE FAILURE OF AN OPPOSING PARTY TO COMPLY WITH THE
PROVISIONS OF THIS PARAGRAPH MAY SEEK THE APPLICABLE REMEDIES UNDER  THE
CIVIL PRACTICE LAW AND RULES.
  S  2.  This  act  shall take effect immediately and shall apply to any
action or proceeding pending on such effective date, and to  any  action
or proceeding commenced on or after the effective date of this act.