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: The U.S. Chamber of Commerce, Consumer Healthcare Products Association (CHPA), FMI – The Food Industry Association, and the National Association of Chain Drug Stores (NACDS) filed an amicus (“friend of the court”) brief in the United States Court of Appeals for the Second Circuit, supporting CRN's challenge against New York’s General Business Law restricting the sale of certain dietary supplements based on their labeling and marketing.
This issue reaches beyond the natural products industry and has implications for the broader business community. In the amicus brief, the U.S. Chamber of Commerce contends that the statute’s use of speech as a trigger for legal restrictions is a dangerous precedent that could impact numerous industries.
Background: NY Age-Restriction Law Takes Effect
CRN’s NY Age-Restriction Lawsuit Moves Forward
“We are grateful for the robust support in this critical legal challenge, and the backing of the U.S. Chamber, CHPA, FMI and NACDS,” said Steve Mister, President and CEO of CRN, in a press release. “The amicus brief articulates the fundamental issues at stake, not just for the dietary supplements industry, but for all businesses that rely on their right to communicate freely about their products.”
The amicus brief underscores the need to apply heightened First Amendment scrutiny to statutes that impose burdens on speech, CRN reported, and makes the following points:
- The statute uses labeling and marketing—forms of protected speech—to determine its applicability, thereby burdening speech without adequate justification.
- The government’s defense and the district court’s determination that the statute merely regulates conduct misreads that the key to whether a product is subject to the law depends on speech, and “reflects the distressing ease with which governments may seek ‘to control speech by recharacterizing it as conduct.’”
- The district court’s decision failed to recognize the statute’s implications for First Amendment rights, warranting a second review of the law and proper application of First Amendment scrutiny.
- The statute’s vague definitions and requirements place undue burdens on businesses, leading to potential punitive measures for inadvertent non-compliance.
