HB-5809, As Passed House, May 19, 2004

SUBSTITUTE FOR

HOUSE BILL NO. 5809

                     (As amended May 19, 2004)                              

                                                                             A bill to amend 1961 PA 236, entitled                                             

"Revised judicature act of 1961,"                                           

(MCL 600.101 to 600.9947) by adding section 2974.                           

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

1   Sec. 2974.  (1) Subject to subsection (2), a manufacturer,                  

2   packer, distributor, carrier, holder, seller, marketer, [promoter,] or      

3   advertiser of a food or an association that includes 1 or more              

4   manufacturers, packers, distributors, carriers, holders, sellers,           

5   marketers, [promoters,] or advertisers of a food is not subject to civil    

6   liability for personal injury or death arising out of weight                

7   gain, obesity, or a health condition associated with weight gain            

8   or obesity.

9   (2) Subsection (1) does not preclude civil liability for                    

10  personal injury or death based on either of the following:                  

11      (a) A material violation of an adulteration or misbranding                  

1   requirement prescribed by a statute or regulation of this state             

2   or the United States that proximately caused the injury or                  

3   death.                                                                      

4       (b) A knowing and willful material violation of federal or                  

5   state law applicable to the manufacturing, marketing,                       

6   distribution, advertising, labeling, or sale of food that                   

7   proximately caused the injury or death.                                     

8       (3) In an action for civil liability described in subsection                

9   (2), the complaint shall state with particularity all of the                

10  following:                                                                  

11      (a) The statute, regulation, or other law of this state or                  

12  the United States that was allegedly violated.                              

13      (b) The facts that are alleged to constitute a material                     

14  violation of the statute, regulation, or law.                               

15      (c) The facts alleged to demonstrate that the violation                     

16  proximately caused actual injury to the plaintiff or individual             

17  on whose behalf the plaintiff is bringing the action.                       

18      (d) If the plaintiff claims that subsection (2)(b) applies,                 

19  facts sufficient to support a reasonable inference that the                 

20  conduct was committed with intent to deceive or injure consumers            

21  or with the actual knowledge that the conduct was injurious to              

22  consumers.                                                                  

23      (4) In an action for civil liability described in subsection                

24  (2), all discovery and other proceedings shall be stayed while a            

25  motion to dismiss is pending unless the court finds on motion of            

26  a party that particularized discovery is necessary to preserve              

27  evidence or to prevent undue prejudice to that party.  While                

House Bill No. 5809 (H-2) as amended May 19, 2004

1   discovery is stayed under this subsection, unless otherwise                 

2   ordered by the court upon a motion from the plaintiff, a party to           

3   the action with actual notice of the allegations in the complaint           

4   shall tender to the court in camera all documents, data                     

5   compilations, including electronically recorded or stored data,             

6   and tangible objects that are in the custody or control of the              

7   party and that are relevant to the allegations or that may lead             

8   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.

9       (6)] This section applies to all actions pending on and all                 

10  actions filed after the effective date of the amendatory act that           

11  added this section, regardless of when the claim accrued.                   

12      [(7)] As used in this section:                                          

13      (a) "Food" means that term as defined in 21 USC 321.                        

14      (b) "Knowing and willful" means, with respect to a violation                

15  of federal or state law, that both of the following apply to the            

16  conduct constituting the violation:                                         

17                                                                               (i) The conduct was committed with the intent to deceive or                         

18  injure consumers or with actual knowledge that the conduct was              

19  injurious to consumers.                                                     

20      (ii) The conduct was not required by a regulation, order,                    

21  Rule, or other pronouncement of, or a statute administered by, a            

22   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.]