North Carolina House Bill 683, known as the Commonsense Consumption Act (“Act”), became effective on October 1, 2013. The Act contains two main provisions. First, it provides that no city or county ordinance may prohibit the sale of soft drinks above a certain size. For this reason, the Act has been jokingly referred to as the “Big Gulp” Act (in reference to the 7-Eleven® signature drink size). Second, and more importantly, the Act shields manufacturers, distributors, sellers, and advertisers from civil liability for claims arising from weight gain, obesity, and other health problems associated with the long-term consumption of food and beverages, provided that certain requirements are met.

The Act creates exceptions to the limitation of liability where the plaintiff’s claim is based on a material violation of an adulteration or misbranding requirement under North Carolina or federal law, or where the claim is based on knowing and willful misconduct in the manufacture, marketing, distribution, advertising, labeling, or sale of food. The Act also requires that the claimed injury was proximately caused by such violation or misconduct.