Another lawsuit has been filed in an effort to challenge the constitutionality of the law that was recently passed in New York, which would restrict consumer access to certain dietary supplements. The Council for Responsible Nutrition (CRN) announced at a press conference at Natural Products Expo West that its suit seeks an injunction to prohibit the enforcement of age-based restrictions on the purchase of certain dietary supplements in the state of New York. In December, NPA filed litigation asserting that NY’s dietary supplement prohibition is unconstitutional.
As WholeFoods Magazine has reported, in October 2023, Governor Kathy Hochul (D-NY) signed A.5610/S.5823 into law to ban the sale of certain weight loss and sports nutrition dietary supplements to New York consumers under the age of 18. CRN explained that the law prohibits retailers in New York from selling to anyone under 18 years old any dietary supplements with ingredients that are labeled, marketed, or otherwise represented for “weight loss” or “muscle building,” even if the product doesn't explicitly make such claims. IRetailers who fail to comply with the law, which is slated to take effect in April 2024, would be subject to fines for each infraction.
Governor Hochul's signature came despite opposition from the natural products industry. It also came despite the fact that she had vetoed a similar bill in December 2022, expressing concerns that the NY state health department lacked the critical expertise needed to evaluate ingredients used across various dietary supplement products. By October 2023, she had reversed course. Lawmakers are under pressure from Harvard-based organization STRIPED (Strategic Training Initiative for the Prevention of Eating Disorders).
STRIPED and the push for age-restriction laws
STRIPED claims that certain dietary supplements cause eating disorders. "Part of their efforts have been to propose age restricted legislation in various states, including New Jersey, Rhode Island, New York, California, Colorado, Missouri, Maryland, and Massachusetts, some of which have come close to passing," Susan J. Hewlings, Ph.D., RD, and Douglas S. Kalman, Ph.D., RD, have explained to WholeFoods Magazine readers. "While the details of the proposed legislation vary from state to state, the main objective of all of them is to limit access of teens to specific dietary supplements that they refer to as 'weight loss' or 'diet' supplements. These include protein, creatine, branched chain amino acids, and diet pills, which are not clearly defined. The research they reference to support their platform is full of scientific holes, which are discussed in a recent review published in Nutrients."
CRN calls the law "flimsy"
Getting right to the heart of it, Steve Mister, President and CEO of CRN, said: "This law is not based on truth." Not only is the premise for it untrue, he said, but research proves that it is not true.
CRN's lawsuit:
- Seeks to enjoin the enforcement of the law, arguing that it runs afoul of the federal and New York constitutions by imposing age-based restrictions on dietary supplements based on vague conditions.
- Argues that the law produces seemingly illogical results by restricting products that are not marketed for weight loss or muscle building and are widely recognized as safe.
- Argues that by creating age restrictions on dietary supplements based on such expansive and imprecise guidelines, the law imposes sanctions on lawful behavior and protected commercial speech, while leaving parties who want to comply guessing as to which products are covered.
“CRN’s Board of Directors did not reach this decision lightly,” said Mister. “Our initial strategy was to work with legislators, the Governor, and the AG’s office to develop reasonable solutions that address legitimate concerns about the rise in eating disorders. But having exhausted those avenues, we must ask the courts to protect the rights of our members, retailers, and consumers in New York.”
The law's stated purpose is to prevent eating disorders in young people. Yet, Mister stressed, there is no credible scientific evidence to support this link. "On a human level," Mister said, "the law gives false hope to individuals and families affected by eating disorders, that a measure like this will somehow solve or make better what is widely regarded as a complex, multifaceted problem that the science tells us is not caused by the use of dietary supplements. And on a legal level, it punishes truthful, otherwise lawful communications by imposing age restrictions based on representations communicated about a product, rather than the actual safety of the product itself.”
That said, Mister added, "Like the supporters of this law, CRN’s member companies take the rise in eating disorders among young people, and the suffering they cause, very seriously. But after carefully evaluating the issue, we believe this law is an example of misguided regulation that will harm both the industry and consumers. By filing this lawsuit, we hope to ensure that New York residents continue to have access to safe and effective dietary supplements.”
The impact on retailers
The law is overly broad, with ambiguous definitions of “weight loss” or “muscle building” products, CRN said. That vagueness will lead retailers and marketers of dietary supplements to restrict sales of a broad range of products for fear of prosecution, with fines up to $500 per violation. Since the law as is provides no guidance for compliance, it leaves manufacturers, distributors, retailers, and consumers guessing as to which products it covers, CRN explained, noting that to avoid breaking the law, retailers and marketers must over-restrict. This, CRN stressed, chills legitimate commercial speech, and prevents consumers from having access to both the products and truthful information about their health benefits or increasing the cost and ability to easily access beneficial health products.
“We know that age restrictions on products inevitably lead to restrictions on access for everyone,” said Mister. “Faced with potential fines, and without guidance from the state, stores are likely to cast an overly broad net on what is covered." At best, he said, retailers would remove products from shelves and place them behind the counter and in locked cases. At worst: Retailers could either discontinue those products entirely. "That prevents all consumers, regardless of age, from having widespread access to beneficial products.”
There is also concern about how it will be decided—and who will decide—which ingredients and products to target. Mister explained that STRIPED has a database called the Dietary Supplement Label Explorer that uses the ODS database to identify products for weight loss and muscle building, and products like those formulated for older women looking to build muscle mass for healthy aging get swept up into the mix even though, presumably, the law is not intended for these items.
Mister also stressed: "If this is allowed, what other products could be targeted for removal?"
Looking ahead
Mister said the hope is for swift action, as the law is slated to go into effect April 23. And this sends a message to other states as well, such as California, where the CA State Assembly recently renewed its push to restrict access to supplements. "I hope this sends a strong message to other states that these laws are on flimsy ground," Mister said. "I hope other states take this as a time to pause and see how this plays out in New York before they advance any efforts on this front."
