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F I S C A L I M P A C T R E P O R T

SPONSOR Komadina

ORIGINAL DATE

LAST UPDATED

2/1/2007

2/9/2007 HB

SHORT TITLE Right to Eat Enchiladas Act

SB 26/aSPAC

ANALYST Schuss

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to SB 85 and HB 747

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney General’s Office (AGO)

Department of Health (DOH)

Public Education Department (PED)

Administrative Office of the Courts (AOC)

SUMMARY

Synopsis of SPAC Amendment

The Senate Pubic Affairs Committee Amendment to Senate Bill 26 includes producers

among the entities that may not be found civilly liable, with the exception of Section 5 of the

act, for a claim arising out of weight gain, obesity or other generally know condition

allegedly caused by or allegedly likely to result from the long-term consumption of food.

Additionally, the amendment also provides that the provisions of the act will apply to all

covered causes of action filed on or after the effective date of the act, instead of pending on

the effective date of the act.

According to AGO, this change to the applicability of the act is now in compliance with the

New Mexico Constitution Article 4, Section 34 which states, “[n]o act of the legislature shall

affect the right or remedy of either party, or change the rules of evidence or procedure, in any

pending case."

Senate Bill 26/aSPAC – Page

2

Synopsis of Original Bill

Senate Bill 26 creates the Right to Eat Enchiladas Act with the purpose of preventing frivolous

lawsuits against manufacturers, packers, distributors, carriers, holders, sellers, marketers, or

advertisers of food that comply with relevant statutory and regulatory requirements. These

entities may not be found civilly liable for injury claims based on weight gain, obesity, a health

condition associated with weight gain or obesity, or a condition allegedly caused by or likely to

be caused by long-term food consumption.

It will be possible to pursue a civil lawsuit when food has been adulterated or misbranded in

violation of state or federal law, and the injury was proximately caused by the violation. The

violation must be knowing and willful. When filing a claim that alleges knowing and willful

violation, the plaintiff must include these elements: state or federal law was violated, the facts

are a violation of state or federal law, the violation was the proximate cause of the injury, and the

facts support a reasonable inference that the violation was knowing and willful.

In all legal actions that are not prevented by the Right to Eat Enchiladas Act, all discovery or

other proceedings are stayed while a motion to dismiss is pending unless the court finds that

specific discovery is necessary to preserve evidence or to prevent undue prejudice.

This act covers all causes of action pending on the effective date of this act and all causes of

action filed after the effective date.

SIGNIFICANT ISSUES

The Attorney General’s Office lists the following issues:

The title of the bill does not appear to accurately reflect its intent. The bill is modeled

after other recently enacted legislation in other states. Similar legislation in other states is

entitled “[state name] Commonsense Consumption Act."

In the bill the definition for the word “claim", it clarifies who has standing to bring a

cause of action. This definition includes a natural person, corporation, company,

association, firm, partnership, society, joint-stock company or other entity including a

governmental entity or private attorney general.

The definition for the phrase “knowing and willful" indicates what state of mind is

necessary to prevail on a claim asserted under the exception of this act where liability is

not precluded.

The remaining definition for “generally known condition allegedly caused by or allegedly

likely to result from the long-term consumption" relates to the cumulative effect of

consumption and not a single instance of consumption.

The bill does not include definitions for those immune from civil liability such as

“manufacturers", distributors" or “association(s) of one or more of these entities."

Senate Bill 26/aSPAC – Page

3

The bill places immunity on causes of action that can currently be brought under the laws

of this state while also defining exceptions to the immunity thus, maintaining certain

rights and causes of action that can be enforced by law (substantive law). This is

distinguished from a law that prescribes the procedures and methods of enforcing rights

(procedural law). The applicability of the act applies to covered causes of action that are

pending on the effective date of the act. Please note that pursuant to the New Mexico

Constitution Article 4, Section 34, “[n]o act of the legislature shall affect the right or

remedy of either party, or change the rules of evidence or procedure, in any pending

case." It is the general rule that a case is not pending within the meaning of this

constitutional provision before it is on the docket of some court or after a final judgment

is filed. State v. Druktenis, 135 N.M. 223, 86 P.3d 1050 (2004).

The bill covers civil liability for any claim of injury but does not cover wrongful death

claims.

BS/nt

Senate Bill 26/aSPAC – Page

4

This bill appears that it would stop discovery on all civil actions not bound by the Right to Eat

Enchiladas Act while a motion to dismiss is pending, according to the Administrative Office of

the Courts. This will lengthen the time to resolution of all civil cases. Parties, victims,

witnesses, and attorneys will have to wait longer for resolution of their legal matters.

PERFORMANCE IMPLICATIONS

The courts are participating in performance-based budgeting. This bill may have an impact on

the measures of the district courts in the following areas:

•

Cases disposed of as a percent of cases filed

•

Percent change in case filings by case type

RELATIONSHIP

Relates to SB 85 and HB 747

OTHER SUBSTANTIVE ISSUES

According to the Department of Health, New Mexico’s percentage of obese Native American

high school students (16.4%) and obese Hispanic high school students (12.4%) is much higher

than obese Non- Hispanic White students (8%). Also, obesity disproportionately affects persons

in lower socio-economic levels. Cost and lack of easy access to nutritious foods, such as fresh

fruits, vegetables and low fat dairy products in low income neighborhoods may contribute to this

disparity.

The Attorney General’s Office notes that this bill

reflects a national trend to address the

mounting concern about the growing obesity epidemic we are facing in the United States. As of

October 15, 2004, bills granting immunity to those in the food distribution and marketing

industry had been introduced in twenty-five (25) states and were enacted in thirteen (13) of those

states. The thirteen states that have enacted legislation include Arizona, Colorado, Georgia,

Florida, Idaho, Illinois, Louisiana, Michigan, Missouri, South Dakota, Tennessee, Utah and

Washington State. Many state-level proposals are modeled after federal legislation introduced in

2003, and are known as the Commonsense Consumption Act or the Personal Responsibility in

Food Consumption Act.

There has been debatable discussion about who is responsible for the health risks associated with

the choices in food consumption. This has led to the potential for food industry-focused tort

litigation. However, other questions arise about the advisability of limiting the access to

potential remedies through the courts. Industry leaders argue that these types of bills will protect

against frivolous lawsuits for obesity claims. Trial lawyers argue that the award of sanctions and

attorney’s fees currently are in place to prevent and punish those who file frivolous lawsuits.

ALTERNATIVES

The Attorney General’s Office offers that the bill could expand the immunity to include claims

of wrongful death as some states have done including Florida, South Dakota, Louisiana and

Michigan.

BS/csd