NPEW 2024 live: CRN lawsuit challenges law restricting sale of “weight loss” or “muscle building” supplements

14 Mar 2024 --- The Council for Responsible Nutrition (CRN), a trade association for the dietary supplement and functional food industry, has taken a stand against a recently enacted New York (US) law that, it claims, threatens consumer access to safe and beneficial health products.

At the Natural Products Expo West (NPEW) trade show in Anaheim, California, US (March 13 – 16), the council revealed it is filing a lawsuit challenging the constitutionality of the law, which imposes age-based restrictions on the purchase of certain dietary supplements in the state.

Nutrition Insight reports on the CRN’s groundbreaking statement live from the trade show floor.

“The CRN filed a lawsuit in federal court in the Southern District of New York, seeking to enjoin the recently enacted New York law that imposes age restrictions on a broad swath of dietary supplements,” says CRN’s president and CEO, Steve Mister. “CRN has been a vocal and consistent critic of the law and our position on these types of laws, which, as you know, are at play in several states.”

“We are filing this suit to ensure that individuals and families in New York can continue to purchase the same safe, reputable dietary supplement products on which they have come to trust and rely. But beyond access to these products, we are also defending the right of manufacturers and retailers to provide consumers with truthful communications about these products.”

What’s in the law?
According to the CRN, the law, signed by New York Governor Kathy Hochul on October 25, 2023, restricts the sale of dietary supplements labeled, marketed or represented for “weight loss” or “muscle building” to individuals under 18 years old.Steve Mister, CRN’s President and CEO, announces the lawsuit live on the NPEW trade show floor.

However, CRN argues that the law’s “broad and ambiguous definitions” of these terms could have far-reaching consequences, leading retailers to over-restrict the sale of a wide range of products, including those with legitimate health benefits unrelated to the aforementioned categories.

“The road to today was paved with numerous appeals to reason meetings over the past two years with the lawmakers, the governor’s staff, the Attorney General’s office and some serious reflection from our board,” Mister reveals. “As you know, Governor Hoku vetoed similar legislation in 2022, but chose us to sign this legislation last October.”

“Faced with the imminent implementation of this misguided law, CRA decided to pursue litigation and we alerted our membership last week. Let’s talk about the law itself — simply put, it fails to provide clear demarcation for what is restricted or even a rational basis for the broad net that it can cast. This ambiguity in the language of the law will prevent manufacturers, distributors and retailers from knowing how to comply and will cause them to restrict legitimate commercial speech to avoid potential penalties while leaving those who want to comply guessing about which products are covered by it.”

An ounce of prevention?
The CRN notes the law’s goal is to prevent eating disorders in young people. However, the council contends that there is no credible scientific evidence linking dietary supplements to such disorders. 

Instead, CRN says the law unfairly targets dietary supplement retailers and marketers, imposing fines of up to US$500 per violation for non-compliance, without providing clear guidance on which products are covered under the new requirements.

According to Mister, the law does not actually provide a solution for the problem of eating disorders. Rather, he says it “scapegoats” the supplement industry, noting that many social activist groups are pushing the narrative that dietary supplements cause eating disorders.

“That simply is not true, and we have the research to prove it,” Mister affirms. “Preventing someone from purchasing a weight management product, or a sports nutrition product or an item containing green tea or green tea extract or creatine will not eliminate or prevent eating disorders.”

“Anyone who understands the complexity of those disorders knows that the solution, unfortunately, is just not that simple and blaming supplements for eating disorders is akin to blaming cookies for childhood obesity and the childhood obesity epidemic. Nobody thinks age-restricting cookies will end childhood obesity.”The lawsuit looks to enjoin the New York state law, banning the sale of certain dietary supplements to consumers under the age of 18.

Constitutional challenges
CRN says the lawsuit seeks to enjoin the enforcement of the law on the grounds that it violates both federal and New York constitutions by imposing age-based restrictions based on vague conditions. By challenging the constitutionality of the law, CRN says that protecting the rights of manufacturers, distributors, retailers and consumers in New York, while ensuring these same rights federally. 

Moreover, CRN states the lawsuit will ensure supplement suppliers and consumers are not unfairly penalized or restricted in their access to safe and beneficial dietary supplements and says its lawsuit provides four separate reasons why the law should be enjoined.

These include violations of the free speech clause in the First Amendment of the Constitution, that the law is based on misguided representations of the supplement’s effects, that it violates due process under the 14th Amendment of the Constitution and that it violates the Supremacy Clause of the Constitution.

“The law unavoidably chills legitimate and truthful commercial speech, denying marketers from making these claims and consumers from receiving this truthful information,” Mister explains. “There is simply no evidence that these products cause eating disorders, and we argue that it is an excessive imposition of the state’s police power to restrict otherwise legal products on such a flimsy house of cards.”

Furthermore, Mister states that the ambiguity and subjective nature of the law make it challenging for suppliers to determine which products must comply, infringing on the lawful activities of suppliers due to unclear legal interpretations.

“Lastly…the age restrictions imposed by the New York law create burdens on lawful and truthful claims that are clearly permitted as structure-function claims under the US Federal Food Drug and Cosmetic Act. This improperly infringes on federal authority and is preempted by federal law.”

“What this means is that retailers, marketers and manufacturers have no clear direction as to what is restricted and what isn’t,” Mister concludes. “We think it means that a lot of products will be removed from self-service shelves and, at best, put behind the counter or in glass cases, or at worst, not sold by many retailers at all.”

By William Bradford Nichols, with live reporting by Jolanda van Hal at NPEW 2024