*Article updated May 16, 12:35pm ET, with additional context and information, as well as comments from the Natural Products Association.
Washington, DC—The Council for Responsible Nutrition (CRN), which in March 2024 filed a lawsuit challenging age restrictions on certain dietary supplements in New York shared the latest update: A federal court in the Southern District of New York has denied the State of New York’s motion to dismiss CRN’s claims that NY's age-restriction law, enacted in April 2024, infringes on lawful commercial speech and violates the First Amendment rights of supplement marketers and retailers.
CRN argues that the law infringes on the right to make truthful and lawful claims for certain dietary supplements that may assist with weight management or provide muscle support. The judge previously ruled that CRN has standing to pursue these claims on behalf of its members.
On other aspects of the lawsuit, the district court judge granted the State’s motion to dismiss the three other causes of action in CRN’s complaint. CRN said it is evaluating its opportunities to appeal those portions of the judge's decision; CRN argues that the age restrictions are invalid because:
- They are void for vagueness;
- They are an excessive use of the State’s police powers without adequate justification;
- They are preempted by the FDA’s federal regulatory framework for the regulation of dietary supplement and their labeling claims.
The Natural Products Association (NPA) had already filed litigation asserting that NY’s dietary supplement prohibition is unconstitutional in December 2023. (The two suits are filed in different districts.) Kyle Turk, Director of Government Affairs at NPA, offered an update of the issue on WholeFoods Magazine's podcast The Natural View. Turk stressed, "This is a critical lawsuit for [the natural products industry] because if we don't win this, we're going to see places like California, New Jersey, Maryland, and some of these other more progressive states follow suit."
Reacting to the judge's decision in the CRN case, Daniel Fabricant, Ph.D., NPA President and CEO, did not see cause for a positive spin. "The fact that the judge struck down three out of CRN's four claims, with only the free speech claim moving forward, means every state legislature that is considering laws like this one in NY is now feeling a little more confident about it. NPA filed a lawsuit in December and our lawsuit is still moving forward, but this isn't good for our case, because the AG will look at what the judge said and factor that in. We will continue to fight, but this second lawsuit from CRN has added a layer of challenge."
About the NY Law to Restrict Access to Certain Supplements
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. Retailers who fail to comply with the law, which took effect in April 2024, are subject to fines for each infraction.
One of the major concerns with the law: “Right now, this law is wide open to interpretation and incredibly ambiguous in terms of how it gets enforced,” said Steve Mister, President and CEO of CRN. “This vagueness will create uncertainty in the retail marketplace, which will ultimately result in retailers deciding not to sell many dietary supplement products, as they will err on the side of caution in an attempt to not break this ill-defined law. In the end, consumers will have less products to choose from when they go to the pharmacy, grocery store or when placing orders online.”
Why Age Restriction?
Lawmakers in NY and elsewhere are under pressure from Harvard-based organization STRIPED (Strategic Training Initiative for the Prevention of Eating Disorders). 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."
Industry members share concerns about eating disorders. As Mister noted: "Like the supporters of this law, CRN’s member companies take the rise in eating disorders among young people seriously. However, this law is an example of misguided regulation that will harm both the industry and consumers. Our lawsuit seeks to enjoin the enforcement of the law and protect the rights of our members to communicate truthful information about their products."
Latest Ruling Sparks Optimism, But More Action is Needed
Following this latest ruling, Mister is optimistic about the court's decision. He stressed CRN's commitment to defending free speech: "Even as we prepare to appeal the district court judge’s earlier decision on our preliminary injunction, we are encouraged by his ruling yesterday on our First Amendment argument,” said Mister. “The judge denied the State of New York’s motion to dismiss our claim that the age restriction law infringes on lawful commercial speech and violates the First Amendment rights of our members to make truthful and lawful claims for their products. In holding that CRN’s claims made plausible the inference that the statute ‘might very well regulate protected speech,’ this decision allows us to move forward on the merits of the case. The judge has already recognized that CRN has standing to pursue these claims on behalf of our members. Yesterday’s ruling was another milestone toward invalidating these illegitimate restrictions. We are confident in the strength of our legal arguments.”
CRN Senior Vice President and General Counsel, Megan Olsen, will provide additional insights on the topic in one of CRN’s Take 5 video segments, released on Wednesday, 5/15/2024 at 12 pm EST.
Industry members are also encouraged to join in advocacy efforts with NPA. Along with its grassroots advocacy campaigns, NPA is once again organizing and hosting its annual federal government advocacy Fly-In on Capitol Hill. On Wednesday, May 22, natural products industry representatives are gathering to meet with members of Congress and explain how public policy can impact the thousands of Americans who are part of the industry, as well as the millions of Americans who safely use nutritional supplements. Retailers, brands, suppliers, and all industry stakeholders from across the country attend this national advocacy conference.
