S T A T E O F N E W Y O R K
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5216
2009-2010 Regular Sessions
I N A S S E M B L Y
February 11, 2009
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Introduced by M. of A. V. LOPEZ -- read once and referred to the Commit-
tee on Codes
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
A. 5216 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.
A. 5216 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.