CRN submits injunction to prevent age-restricted dietary supplement law in US

10 Apr 2024 --- The Council for Responsible Nutrition (CRN) filed an emergency motion to prevent a new law that puts an age restriction on the sale of weight loss and muscle-building dietary supplements from being passed in New York, US. The dietary supplement and functional food trade association says its grounds for filing is that the new law hinders access to safe supplements.

“This new law was pushed by social advocates relying on an unscientific and meritless argument that dietary supplements somehow cause eating disorders in young people, when the research shows they do not,” says Steve Mister, president and CEO of CRN.

“If we stand by and allow this law to go into effect, it won’t help young people with eating disorders, but it will stop families in the Empire State from purchasing the trusted nutrition products they use to keep their families healthy.”

CRN is asking the court to stop the state attorney general from enforcing the law until the issues it has identified in the litigation have been resolved. To determine whether a product falls within the prohibition, the Act directs courts to consider whether the dietary supplement contains an expressly identified ingredient; the labeling bears statements or images implying the product will help with, inter alia, “the process by which nutrients are metabolized” or maintain muscle or muscle strength; or how a retailer has characterized the product.

“Ill-defined” law?
The law restricts the sale of dietary supplements and products containing ingredients that are marketed, labeled or otherwise represented to achieve weight loss or muscle-building. CRN states that the law is unclear on what is needed from businesses or the exact products under scrutiny.

In his declaration to the district court, Mister states, despite his substantial experience in the dietary supplement industry: “I cannot determine what products fall within the Act’s ambit. I am not personally familiar with what it means to represent a product as aiding in weight loss or muscle building, nor am I aware of any common industry understanding as to what those terms mean.” 

Any number of products or ingredients could play a role in a body’s weight, muscle mass or metabolism, either directly or indirectly, through various known or unknown mechanisms of action. 

In a public statement, CRN claims the law can be interpreted in different ways, “leading responsible, well-meaning manufacturers and retailers to run afoul of the law without even realizing it.” The law can also cause cautious marketers to be less transparent in their communications to consumers for fear of triggering the restrictions.CRN has asked the district court to oppose the state attorney general’s age-restricted weight loss and muscle-building dietary supplements law. 

“Right now, this law is wide open to interpretation and incredibly ambiguous in terms of how it gets enforced. 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,” Mister laments.

“In the end, consumers will have less products to choose from when they go to the pharmacy, grocery store or when placing orders online.”

CRN argues in the motion that the law violates the New York and US constitutions and should be invalidated because it is “ambiguous, chills speech, is an excessive use of the state’s police powers and preempted by certain Food, Drug, and Cosmetic Act provisions.”

Another major concern of CRN is the current economic landscape and how it will affect the dietary supplement segment. Mister’s declaration states: “CRN members are determining whether they should cease selling dietary supplement products in the State of New York altogether or case sales in certain outlets because of compliance challenges.” 

“These products are safe, legal and truthfully labeled under the federal laws and regulations. However, because of the tremendous burdens the Act imposes, if the Act goes into effect, it will no longer make economic sense for members to sell certain products in New York. As a result, adults in the State will no longer have the option to purchase these products.”

Economic burden of age-restricted products
CRN filed a lawsuit on March 13, challenging the constitutionality of the law, which it claims will restrict consumer access to safe and beneficial health products and have severe and unintended negative consequences on the operations of brick-and-mortar and online retailers in the state. The motion filed is an element of that suit.

One of the organization’s concerns around the age restriction is that all age verification procedures impose compliance and oversight costs concerning employee training and identifying these products.

“These burdens are particularly steep in the context of online sales, in which many of CRN’s members deal. In that context, the Act expressly requires the use of an age-verification shipping service to ensure that the recipient of the package is over the age of 18,” Mister states in his court declaration. 

“Logistically, I am not even aware of any common carrier or delivery service in New York that readily employs age-verification procedures for consumers between the ages of 18 and 21 years old, as existing services only provide age certification to those at least 21 years old.”

Mister believes that the Act stifles speech and restricts the availability of dietary supplements nationwide. According to the CRN president, the Act deprives consumers of critical information concerning their health and the availability of dietary supplements. 

“Adult consumers in New York will feel the brunt of these effects. In some instances, the Act will entirely deprive adult consumers lacking government identification of the ability to purchase a product they have every legal right to obtain and consume. Additionally, adults will lose the ability to purchase these supplements anonymously, with ease and at the cost that they did before the Act,” he concludes.

By Inga de Jong