STATE OF OKLAHOMA

1st Extraordinary Session of the 54th Legislature (2013)

HOUSE BILL 1022	By:	Perryman

AS INTRODUCED

An Act relating to torts; repealing 76 O.S. 2011, Sections 34, 35, 36 and 37, which relate to the Common Sense Consumption Act; creating the Common Sense Consumption Act; providing short title; stating legislative intent; defining terms; providing immunity from civil liability for certain claims; providing exception; establishing pleading requirements; providing for stay of discovery and other proceedings in certain circumstances; stating applicability of act; providing for codification; and declaring an emergency.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1.     REPEALER     76 O.S. 2011, Sections 34, 35, 36 and 37, are hereby repealed.
SECTION 2.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 38 of Title 76, unless there is created a duplication in numbering, reads as follows:
Sections 2 through 5 of this act shall be known and may be cited as the "Common Sense Consumption Act".
SECTION 3.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 39 of Title 76, unless there is created a duplication in numbering, reads as follows:
The intent of the Common Sense Consumption Act is to prevent frivolous lawsuits against manufacturers, packers, distributors, carriers, holders, sellers, marketers or advertisers of food products that comply with applicable statutory and regulatory requirements.
SECTION 4.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 40 of Title 76, unless there is created a duplication in numbering, reads as follows:
As used in the Common Sense Consumption Act:
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 individual, corporation, company, association, firm, partnership, society, joint-stock company, or any other entity, including any governmental entity or governmental officer, or private attorney; and
2.  "Knowing and willful violation" means 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
b.	the conduct constituting the violation was not required by regulations, orders, rules or other pronouncement of, or any statute administered by, a federal, state, or local government agency.
SECTION 5.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 41 of Title 76, unless there is created a duplication in numbering, reads as follows:
A.  Except as provided in subsection B of this section, a manufacturer, packer, distributor, carrier, holder, seller, marketer or advertiser of a food, as defined in Section 201(f) of the Federal Food, Drug and Cosmetic 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, including all statutes, regulations, rules, common law, public policies, court or administrative decisions or decrees, or other state action having the effect of law, for any claim arising out of weight gain, obesity, or a health condition associated with weight gain or obesity.
B.  Subsection A of this section shall not preclude civil liability if the claim of weight gain, obesity, or a health condition associated with weight gain or obesity, is based on:
1.  A material violation of an adulteration or misbranding requirement prescribed by statute or regulation of this state or the United States of America and the claimed injury was proximately caused by such violation; or
2.  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 is either:
a.	in reckless disregard for the rights of others,
b.	grossly negligent,
c.	fraudulent, or
d.	intentional or with malice.
C.  In any action exempted under paragraph 1 of subsection B of this section, the petition initiating such action shall state with particularity the following:  the statute, regulation or other law of this state or of the United States that was allegedly violated; the facts that are alleged to constitute a material violation of such statute or regulation; and the facts alleged to demonstrate that such violation proximately caused actual injury to the plaintiff.  In any action exempted under paragraph 2 of subsection B of this section, in addition to the foregoing pleading requirements, the petition initiating such action shall state with particularity facts sufficient to support a reasonable inference that the violation was of such a nature to meet the requirements for exemption under paragraph 2 of subsection B of this section.  For purposes of applying the Common Sense Consumption Act, the foregoing pleading requirements are hereby deemed part of the substantive law of this state and not merely in the nature of procedural provisions.
D.  In any action exempted under subsection B of this section, 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 subsection, unless otherwise ordered by the court, any party to the action with actual notice of the allegations contained in the petition 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 Section 3234 of Title 12 of the Oklahoma Statutes.
E.  The provisions of the Common Sense Consumption Act shall apply to all claims filed on or after the effective date of this act.
SECTION 6.  It being immediately necessary for the preservation of the public peace, health and safety, an emergency is hereby declared to exist, by reason whereof this act shall take effect and be in full force from and after its passage and approval.

54-1EX-50034	SD	09/03/13