05 HB
196/FA/AP
House
Bill 196 (AS PASSED HOUSE AND SENATE)
By:
Representatives Smith of the
113th,
Ehrhart of the
36th,
Willard of the
49th,
Fleming of the
117th,
Parrish of the
156th,
and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 2 of Title 26 of the Official Code of Georgia Annotated, relating
to standards, labeling, and adulteration of food, so as to change certain
provisions relating to common-sense consumption; to repeal conflicting laws; and
for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
2 of Title 26 of the Official Code of Georgia Annotated, relating to standards,
labeling, and adulteration of food, is amended by striking Article 16, relating
to common-sense consumption, and inserting in lieu thereof the
following:
"ARTICLE
16
26-2-430.
This
article shall be known and may be cited as the 'Common-sense Consumption
Act.'
26-2-431.
As
used in this article, the term:
(1)
'Claim' means 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)
'Federal act' means the Federal Food, Drug, and Cosmetic Act (Title 21 U.S.C.
Section 301, et seq., 52 Stat. Section 1040, et seq.).
(3)
'Generally-known
Generally
known condition allegedly caused by or
allegedly likely to result from long-term consumption' means a condition
generally known to result or likely to result from the cumulative effect of
consumption and not from a single instance of consumption.
(4)
'Knowing and willful' means that:
(A)
The conduct constituting a violation of federal or state law was committed with
the intent to deceive or injure consumers or with actual knowledge that such
conduct was injurious to consumers; and
(B)
The conduct constituting such violation was not required by regulations, orders,
rules, or other pronouncement of, or any statute administered by, a federal,
state, or local government agency.
(5)
'Other person' means any individual, corporation, company, association, firm,
partnership, society, joint-stock company, or other entity, including any
governmental entity or private attorney general.
26-2-432.
Except
as provided in Code Section 26-2-433, a manufacturer, packer, distributor,
carrier, holder, seller, marketer, or advertiser of a food, as defined in
Section 201(f) of the federal act,
21 U.S.C.
Section 321(f), or an association of one
or more such entities, shall not be subject to civil liability arising under any
law of this state for any claim arising out of weight gain, obesity, a health
condition associated with weight gain or obesity, or other
generally-known
generally
known condition allegedly caused by or
allegedly likely to result from long-term consumption of food.
26-2-433.
The
limitation of liability provided for in Code Section 26-2-432 shall not preclude
civil liability
that might
otherwise exist under the law of this
state where the
claim
claimed injury
does not arise out of weight gain,
obesity, health condition associated with weight gain or obesity, or other
generally-known
generally
known condition allegedly caused by or
allegedly likely to result from long-term consumption of food
is
but is
instead based on
other
cognizable injuries arising
from:
(1)
A material violation of an adulteration or misbranding requirement prescribed by
statute or regulation of this state or of the United States and the claimed
injury was proximately caused by such violation; or
(2)
Any other material violation of federal or state
law
statutes or
regulations applicable to the
manufacturing, marketing, distribution, advertising, labeling, or sale of food,
provided that such violation is knowing and
willful, the
claim is brought by a party authorized to bring suit under such
law, and the claimed injury was
proximately caused by such violation.
26-2-434.
(a)
In any action exempted under paragraph (1) of Code Section 26-2-433, the
complaint initiating such action shall state with particularity the
following:
(1)
The statute, regulation, or other law of this state or of the United States that
was allegedly violated;
(2)
The facts that are alleged to constitute a material violation of such statute,
regulation, or other law; and
(3)
The facts alleged to demonstrate that such violation proximately caused actual
injury to the plaintiff.
(b)
In any action exempted under paragraph (2) of Code Section 26-2-433, in addition
to the requirements of subsection (a) of this Code section, the complaint
initiating such action shall state with particularity facts sufficient to
support a reasonable inference that the violation was
knowing and
willful
with intent to
deceive or injure consumers or with the actual knowledge that such violation was
injurious to consumers.
(c)
For purposes of
applying
this article, the requirements
of
subsection (a) of this Code section are
hereby deemed part of the substantive law of this state and not merely in the
nature of procedural provisions.
26-2-435.
In
any action exempted under Code Section 26-2-433, all discovery and other
proceedings shall be stayed during the pendency of any motion to dismiss unless
the court finds upon the motion of any party that particularized discovery is
necessary to preserve evidence or to prevent undue prejudice to that party.
During the pendency of any stay of discovery pursuant to this Code section,
unless otherwise ordered by the court, any party to the action with actual
notice of the allegations contained in the complaint shall treat all documents,
data compilations, including electronically recorded or stored data, and
tangible objects that are in the custody or control of such party and that are
relevant to the allegations, as if they were the subject of a continuing request
for production of documents from an opposing party under Title 9.
26-2-436.
The
provisions of this article shall apply to all covered claims pending on
July 1,
2004,
the
effective date
of this Code section and all claims filed
thereafter, regardless of when the claim arose.”
SECTION
2.
All
laws and parts of laws in conflict with this Act are repealed.