At It Again: The Junk Food Protection Act
Linda Andros, Legislative Counsel, Congress Watch
Once again, big corporate interests are attempting to inflict new and harmful changes in consumer protection law - part of a little-here and little-there strategy to whittle away at consumer rights. A bill pending in the Senate (S. 908), the "Commonsense Consumption Act" would immunize both the food and dietary supplement industries from civil suits for health conditions associated with weight gain or obesity. The bill is being touted as a way to stop claims by individuals that blame the fast food industry for becoming obese due to consumption of fast food. While corporate interests assert the bill would focus on "personal responsibility," it is a radical assault on state consumer protection law. Its real aim is to force individuals and the public to assume more risk in the marketplace -- even if products are dangerous and their advertising is false or deceptive.
The bill would reduce access to the courts in several ways. In a radical power grab, it would preempt state consumer protection law, taking traditional enforcement authority away from state attorneys, general. The bill also fails to provide an exemption for adulterated or misbranded products. This means that if an adulterated or misbranded product is associated with any weight gain under the broad language of the bill, state attorneys' general would not be able to protect citizens. Instead, the bill requires an already overburdened and under-funded Food and Drug Administration (FDA) to monitor all 50 states for adulterated and misbranded products. Given the FDA's full plate, this is akin to totally gutting enforcement of these laws.
S. 908 also would make it virtually impossible for state attorneys' general and individuals to bring suits for false advertising and other deceptive practices. The bill radically rewrites states' unfair and deceptive practices (UDAP) statutes by setting an unreasonably high burden to prove violations. Under the strictures of the bill, a plaintiff would have to show that a manufacturer: 1) knowingly violated state law; 2) with the specific intent to deceive; and 3) that the "individual" was injured by "justifiably" relying on that deception. A similarly onerous burden of proof does not exist in most state UDAP statues and is not applied by the FTC. This preemption of state law effectively would preclude enforcement of UDAP claims and undermine the purpose of UDAP statutes, which are designed to stop unfair and deceptive practices in the marketplace. If these large corporate interests get their way, caveat emptor, or "let the buyer beware," would be resurrected as the sole protection that honest people have from unscrupulous dealings.
Likewise, S. 908 reaches down into state lawbooks to rewrite basic courtroom rules to favor corporate interests. The bill preempts state civil procedure rules by introducing new anti-plaintiff bias into pleading and discovery requirements, making it harder for individuals to hold industries accountable in court or to obtain information once there. This foray would force revisions of state civil process rules, rolling back decades of hard work on state rules, overturning scores of precedent in each state and up-ending principles of fundamental fairness that ensure everyone plays by the same rules.
While the food and dietary supplement companies suggest that S. 908 is a narrowly tailored bill, it would actually shield all food, including food additives and dietary supplements from civil liability for a substantial range of health conditions. In the case of dietary supplements, this immunity from suit is extremely dangerous because the industry remains virtually unregulated. For example, if an individual develops liver damage from consuming a food or dietary supplement, but also has unrelated weight gain from that consumption, the offending company would likely argue that it has no responsibility for any of the harm caused by the liver damage. The injured person and their family would be saddled with all of the health expense related to the liver failure, while the dietary supplement maker would lack any incentive to make a safer product.
Even the main focus of the bill is a solution in search of a problem. Its purported motivation - the threat of "fat lawsuits" - is pure hype. Suits alleging that food made a person obese do not exist, except for a single suit that was rejected by the court. S. 908 is simply a vehicle for corporate special interests to begin erasing hard-earned gains in consumer protection. Ultimately, their vision would return us to a world reminiscent of Charles Dickens; where might makes right and the economically powerful can evade responsibility for harm caused by their actions. Consumers deserve better. The Senate should vote no on S. 908.
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