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WASHINGTON – The Council for Responsible Nutrition (CRN), the leading trade association for the dietary supplement and functional food industry, has filed a reply brief with the United States Court of Appeals for the Second Circuit calling for a preliminary injunction to halt enforcement of the state’s new age-restriction law on certain dietary supplements. The filing responds to the New York State Attorney General’s defense of a lower court’s refusal to grant CRN a preliminary injunction pending a final outcome of CRN’s litigation asserting that the New York law is unconstitutional. CRN’s most recent brief argues that the NY AG does not meaningfully address CRN’s arguments about the Act’s constitutional infirmities.
In April 2024, New York became the first—and only— state to ban the sale of so-called “weight-loss and muscle-building” supplements to consumers under 18 years old. The law applies to both online retailers and brick-and-mortar stores and requires sellers to engage in various age-verification procedures, including that delivery sellers must employ mechanisms that check a purchaser’s age upon delivery.
Last month, CRN appealed an April ruling by a federal district court denying the association’s request for a preliminary injunction against the New York law. CRN continues to challenge that decision with the brief filed today, reiterating that the law unconstitutionally targets supplements based on how they are advertised, labeled or marketed rather than targeting actual health or safety concerns with specific products or ingredients. The reply brief directly addresses the points raised by the Attorney General’s office in defense of the denial for injunction, highlighting the flawed basis for the law and the First Amendment scrutiny that must occur when the State’s restrictions on a product “are triggered by the speech associated with the product.”
Steve Mister, President & CEO of CRN, stated, "This law in New York is not just an unnecessary burden on businesses, but it is also predicated on the unscientific notion that eating disorders are somehow caused by supplement usage, which has been shown to be untrue. What this law does do, however, is threatens to limit consumer access to products that support their health. By focusing on marketing claims rather than the actual ingredients in these products, the law violates free speech rights and could make it harder for all consumers, including adults, to purchase safe and beneficial supplements."
Megan Olsen, Senior Vice President and General Counsel at CRN, added, "Our reply brief demonstrates how the New York Attorney General’s arguments to dodge the First Amendment reckoning just don’t hold up. The law is too broad, lacks evidence to support its claims, and could lead to fewer choices, and less truthful information getting to consumers without actually protecting anyone."
As Mister stated, CRN argues that the law restricts speech by targeting how products are marketed, rather than focusing on the safety of the products themselves. The law also doesn’t clearly define what constitutes a "weight loss" or "muscle building" supplement, which could lead to confusion and uneven enforcement, as well as a chilling of truthful information about “metabolism,” “muscle” support and sports nutrition out of an abundance of caution that such claims could trigger the restrictions. CRN points out that there is no solid evidence connecting the marketing of these supplements to any actual harm, particularly in relation to eating disorders in minors. The law could unnecessarily limit access to safe supplements for all consumers, not just minors, by making it harder to buy these products.
While the original challenge calling for a permanent prohibition of enforcement of the law is still pending in the district court, CRN urges the appellate court to reconsider the lower court’s previous decision and to grant an injunction preventing the law from being enforced while these constitutional issues are resolved.
