By Mike Montemarano, Associate Editor04.08.24
The Council for Responsible Nutrition (CRN) has been granted a hearing after filing a motion for a preliminary injunction in its lawsuit against New York Attorney General Letitia James, which seeks to repeal a ban on the sale of weight loss and muscle-building supplements to minors, Steve Mister, president and CEO of the Council for Responsible Nutrition (CRN) told Nutraceuticals World.
The law, which was passed in 2023, is slated to go into effect on Apr. 22. If the court agrees to grant CRN a preliminary injunction in the case at a hearing on Wednesday, Apr. 10, the state attorney general’s office would be barred from enforcing the law until the lawsuit is resolved.
The Natural Products Association (NPA) said it will also be filing a motion for a preliminary injunction in a similar lawsuit against James which seeks the same outcome, Daniel Fabricant, PhD, president and CEO of NPA told Nutraceuticals World.
NPA first filed a lawsuit challenging the constitutionality of New York’s age restriction law in December 2023 in New York’s Eastern District, and, in March, CRN filed its own separate challenge against the law in the state’s Southern District.
Mister said that the key to securing an injunction on the law would be to demonstrate, with its own declarations and those of member companies, how the law could directly harm businesses from engaging in constitutionally protected commercial speech with no due process.
The law, as it’s written, can’t be understood well enough to follow, thereby violating the 14th amendment and due process, said Mister.
“When a state passes a law, it has to be clear enough that people can understand what conduct is legal and what is not. We’ve got numerous examples in our motions and accompanying declarations of companies that are trying to make decisions right now about which of their products are covered or not, and they simply can’t determine because the descriptions in the law are just so broad.”
Additionally, “this is chilling legitimate and truthful commercial speech,” Mister said. “Companies are re-evaluating their claims, and in one case are considering changing the name of a product, even though these claims are completely truthful and allowable as structure-function claims under federal law. But if they make them in New York, those claims will be restricted, and they’ll lose sales as a result.”
“A plain reading of the law means that even if some third party makes a recommendation that a particular ingredient is helpful for weight loss or muscle building, any product containing that ingredient can be implicated for age restriction even if the marketer isn’t making that claim,” Mister said. “Someone else’s conduct can cause your product to be put in this restricted class. Think about how many people are on TikTok making claims that berberine is ‘nature’s Ozempic.’ Will all berberine products, including those that make no weight loss claims, be caught up in the age restriction? There’s a plausible interpretation which says that, yes, those products are implicated. That might not be what the legislature intended, but that’s what they wrote.”
In addition to providing legislatures across the country with model legislation, STRIPED (Strategic Initiative for the Prevention of Eating Disorders), which has been at the forefront of advocating for state bills placing age restrictions on supplements, had a full registry of products it recommended age-restricting. That list, once available for public viewing, has since been password-protected, said Mister.
“They included multivitamins that might make a reference to helping with metabolism, or products that have calcium, vitamin D, and magnesium, which talk about strengthening bones and muscles. Those examples really alarm us,” Mister said.
Because sellers in New York are effectively taking shots in the dark when guessing which products will be covered or not by the age restriction, retailers and vendors should focus on communicating with one another about those decisions, Mister said. “Your decision about which products are covered and which ones aren’t won’t be the same as what the attorney general says but retailers should have a clear reason for each decision they’ve made ... Certainly don’t take STRIPED’s opinion for it.”
“By filing in the Southern District, we were able to immediately file for a preliminary injunction and didn’t need to seek the court’s permission to do that. In the Eastern District, they [NPA] have to petition and get the court to agree to even let them file this motion. So that was part of the tactical decision we made.”
Additionally, CRN’s suit also covers additional ground discussing the first amendment implications of the law, Mister said, “because we feel that’s a very compelling argument and we don’t have to show the same kinds of injuries [as other alleged infringements] for that to count [in a preliminary injunction hearing]. We just have to show that legitimate commercial speech is being infringed and that there were less restrictive ways the state could’ve tried to meet its objective without chilling free speech.”
Filing a separate lawsuit also allows CRN’s member companies, through CRN as a plaintiff, to file individual declarations within a single court case.
“In both the Eastern and Southern Districts, there appears to be some concern about whether a trade association has legal standing to step into the shoes of its members and represent their interests as a named plaintiff in a case. We’ve filed nine declarations from members so that we could point to many actual companies that have experienced actual injury. By serving as a plaintiff in our own lawsuit, we were able to direct those decisions,” Mister said.
On a final note, “we shouldn’t lose sight of the fact that this law is completely misguided in the first place,” Mister said. “In our original complaint, beginning at around paragraph 64, we discussed the process that the legislature was going through when they were trying to pass this law. Time and time again, questions were raised as to whether there is a causal relationship between these products and eating disorders. Can we show that there is going to be any benefit from restricting them? How is the state going to decide what’s in and what isn’t? They just keep kicking the can down the road; they were never able to answer those questions.”
“Over and over again, in that legislative process, they demonstrate that they had no reason to believe that restricting these products will have any effect on eating disorders in the state of New York,” Mister said.
About the Author: Mike Montemarano has been the Associate Editor of Nutraceuticals World since 2020. He can be reached at mmontemarano@rodmanmedia.com.
The law, which was passed in 2023, is slated to go into effect on Apr. 22. If the court agrees to grant CRN a preliminary injunction in the case at a hearing on Wednesday, Apr. 10, the state attorney general’s office would be barred from enforcing the law until the lawsuit is resolved.
The Natural Products Association (NPA) said it will also be filing a motion for a preliminary injunction in a similar lawsuit against James which seeks the same outcome, Daniel Fabricant, PhD, president and CEO of NPA told Nutraceuticals World.
NPA first filed a lawsuit challenging the constitutionality of New York’s age restriction law in December 2023 in New York’s Eastern District, and, in March, CRN filed its own separate challenge against the law in the state’s Southern District.
Mister said that the key to securing an injunction on the law would be to demonstrate, with its own declarations and those of member companies, how the law could directly harm businesses from engaging in constitutionally protected commercial speech with no due process.
The law, as it’s written, can’t be understood well enough to follow, thereby violating the 14th amendment and due process, said Mister.
“When a state passes a law, it has to be clear enough that people can understand what conduct is legal and what is not. We’ve got numerous examples in our motions and accompanying declarations of companies that are trying to make decisions right now about which of their products are covered or not, and they simply can’t determine because the descriptions in the law are just so broad.”
Additionally, “this is chilling legitimate and truthful commercial speech,” Mister said. “Companies are re-evaluating their claims, and in one case are considering changing the name of a product, even though these claims are completely truthful and allowable as structure-function claims under federal law. But if they make them in New York, those claims will be restricted, and they’ll lose sales as a result.”
A Slippery Slope
There’s been much speculation regarding the protocol by which the attorney general’s office might enforce this law. With no guard rails on how the law is enforced, “all you have is the language of the statute,” said Mister.“A plain reading of the law means that even if some third party makes a recommendation that a particular ingredient is helpful for weight loss or muscle building, any product containing that ingredient can be implicated for age restriction even if the marketer isn’t making that claim,” Mister said. “Someone else’s conduct can cause your product to be put in this restricted class. Think about how many people are on TikTok making claims that berberine is ‘nature’s Ozempic.’ Will all berberine products, including those that make no weight loss claims, be caught up in the age restriction? There’s a plausible interpretation which says that, yes, those products are implicated. That might not be what the legislature intended, but that’s what they wrote.”
In addition to providing legislatures across the country with model legislation, STRIPED (Strategic Initiative for the Prevention of Eating Disorders), which has been at the forefront of advocating for state bills placing age restrictions on supplements, had a full registry of products it recommended age-restricting. That list, once available for public viewing, has since been password-protected, said Mister.
“They included multivitamins that might make a reference to helping with metabolism, or products that have calcium, vitamin D, and magnesium, which talk about strengthening bones and muscles. Those examples really alarm us,” Mister said.
Because sellers in New York are effectively taking shots in the dark when guessing which products will be covered or not by the age restriction, retailers and vendors should focus on communicating with one another about those decisions, Mister said. “Your decision about which products are covered and which ones aren’t won’t be the same as what the attorney general says but retailers should have a clear reason for each decision they’ve made ... Certainly don’t take STRIPED’s opinion for it.”
Why File a Separate Lawsuit?
While CRN is “absolutely in lockstep” with NPA regarding the end goal, “each organization needs to pursue its own strategy based on what its members feel needs to get done,” said Mister, and so, CRN decided to file a second lawsuit in a separate district following NPA.“By filing in the Southern District, we were able to immediately file for a preliminary injunction and didn’t need to seek the court’s permission to do that. In the Eastern District, they [NPA] have to petition and get the court to agree to even let them file this motion. So that was part of the tactical decision we made.”
Additionally, CRN’s suit also covers additional ground discussing the first amendment implications of the law, Mister said, “because we feel that’s a very compelling argument and we don’t have to show the same kinds of injuries [as other alleged infringements] for that to count [in a preliminary injunction hearing]. We just have to show that legitimate commercial speech is being infringed and that there were less restrictive ways the state could’ve tried to meet its objective without chilling free speech.”
Filing a separate lawsuit also allows CRN’s member companies, through CRN as a plaintiff, to file individual declarations within a single court case.
“In both the Eastern and Southern Districts, there appears to be some concern about whether a trade association has legal standing to step into the shoes of its members and represent their interests as a named plaintiff in a case. We’ve filed nine declarations from members so that we could point to many actual companies that have experienced actual injury. By serving as a plaintiff in our own lawsuit, we were able to direct those decisions,” Mister said.
On a final note, “we shouldn’t lose sight of the fact that this law is completely misguided in the first place,” Mister said. “In our original complaint, beginning at around paragraph 64, we discussed the process that the legislature was going through when they were trying to pass this law. Time and time again, questions were raised as to whether there is a causal relationship between these products and eating disorders. Can we show that there is going to be any benefit from restricting them? How is the state going to decide what’s in and what isn’t? They just keep kicking the can down the road; they were never able to answer those questions.”
“Over and over again, in that legislative process, they demonstrate that they had no reason to believe that restricting these products will have any effect on eating disorders in the state of New York,” Mister said.
About the Author: Mike Montemarano has been the Associate Editor of Nutraceuticals World since 2020. He can be reached at mmontemarano@rodmanmedia.com.
