537.595. Citation--definitions--immunity from liability for claims relating to weight gain or obesity, when, exceptions--petition, contents--effective date.
Citation--definitions--immunity from liability for claims relatingto weight gain or obesity, when, exceptions--petition,contents--effective date.
537.595. 1. This section may be known as the "CommonsenseConsumption Act".
2. As used in this section, the following terms mean:
(1) "Claim", any claim by or on behalf of a natural person, as wellas any derivative or other claim arising therefrom asserted by or on behalfof any other person;
(2) "Generally known condition allegedly caused by or allegedlylikely to result from long-term consumption", a condition generally knownto result or to likely result from the cumulative effect of consumption andnot from a single instance of consumption;
(3) "Knowing or willful violation of federal or state law", that:
(a) The conduct constituting the violation was committed with theintent to deceive or injure consumers or with actual knowledge that suchconduct was injurious to consumers; and
(b) The conduct constituting the violation was not required byregulations, orders, rules, or other pronouncements of, or statutesadministered by, a federal, state, or local government agency;
(4) "Other person", any individual, corporation, company,association, firm, partnership, society, joint-stock company, or any otherentity, including any governmental entity or private attorney general.
3. Except as exempted in subsection 4 of this section, amanufacturer, packer, distributor, carrier, holder, seller, marketer,retailer, or advertiser of a food, as defined in the Federal Food, Drug,and Cosmetic Act (21 U.S.C. 321(f)), as amended, but shall not includealcoholic beverages, or an association of one or more such entities shallnot be subject to civil liability under any state law, including allstatutes, regulations, rules, common law, public policies, court oradministrative decisions or decrees, or other state actions having theeffect of law, for any claim arising out of weight gain, obesity, or ahealth condition associated with weight gain or obesity.
4. The provisions of subsection 3 of this section shall not precludecivil liability where the claim of weight gain, obesity, health conditionassociated with weight gain or obesity, or other generally known conditionallegedly caused by or allegedly likely to result from long-termconsumption of food is based on:
(1) A material violation of an adulteration or misbrandingrequirement prescribed by statute or regulation of the state of Missouri orthe United States and the claimed injury was proximately caused by suchviolation; or
(2) Any other material violation of federal or state law applicableto the manufacturing, marketing, distribution, advertising, labeling, orsale of food, provided that such violation is knowing and willful, and theclaimed injury was proximately caused by such violation.The provisions of subsection 3 of this section shall not preclude civilliability for breach of express contract or express warranty in connectionwith the purchase of food.
5. In any action exempted under subdivision (1) or (2) of subsection4 of this section, the petition initiating such action shall state withparticularity the following: the statute, regulation, or other state orfederal law that was allegedly violated, the facts that are alleged toconstitute a material violation of such statute or regulation, and thefacts alleged to demonstrate that such violation proximately caused actualinjury to the plaintiff. In any action exempted under subdivision (2) ofsubsection 4 of this section, the petition initiating such action shallalso state with particularity facts sufficient to support a reasonableinference that the violation occurred with the intent to deceive or injureconsumers or with the actual knowledge that such violation was injurious toconsumers. For purposes of applying this section the pleading requirementsunder this section are deemed part of state substantive law and not merelyprocedural provisions.
6. In any action exempted under subsection 4 of this section, alldiscovery and other proceedings shall be stayed during the pendency of anymotion to dismiss unless the court finds upon the motion of any party thatparticularized discovery is necessary to preserve evidence, resolve themotion to dismiss, or to prevent undue prejudice to that party. During thependency of any stay of discovery under this subsection and unlessotherwise ordered by the court, any party to the action with actual noticeof the allegations contained in the petition shall treat all documents,data compilations, including electronically recorded or stored data, andtangible objects that are in the custody or control of such party that arerelevant to the allegations as if they were the subject of a continuingrequest for production of documents from an opposing party under theMissouri rules of civil procedure.
7. The provisions of this section shall apply to all covered claimspending on or filed after January 1, 2005, regardless of when the claimarose.
(L. 2004 H.B. 1115 § 537.900)Effective 1-01-05