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Robert Marriott of the American Herbal Products Association dissects state bills across the U.S. that he cautioned would impose burdensome restrictions on the dietary supplement industry.
January 30, 2024
From coast to coast, recent state legislative efforts to place age restrictions on sports nutrition products have intensified under the guise of protecting minors. In practice, however, such legislation would limit access to safe sports nutrition products for all consumers by imposing an inconsistent range of burdensome restrictions on manufacturers, marketers and retailers.
Further, while ostensibly aimed at weight loss and muscle-building dietary supplements, ambiguity in the scope and language of these bills could allow for broader and unwarranted application to unrelated products.
Now, with a bill enacted in New York and others advancing, the challenges presented by this form of age-gating legislation call for the attention of not only the sports nutrition sector but also the wider dietary supplement industry.
These restrictive bills all propose to ban the sale of weight loss or muscle-building dietary supplements (or both) to those under 18. Each appears a product of the Strategic Initiative for the Prevention of Eating Disorders (STRIPED), a graduate training program operating out of the Harvard T.H. Chan School of Preventive Health. STRIPED has continuously drafted and distributed this sort of age restriction legislation for years, but the enactment of New York Assembly Bill 5610 (AB 5610) into law represents the organization’s first legislative success on this front.
AB 5610 is scheduled to take effect in April, and its terms highlight the potential harms that this sort of category-targeting legislation can do to the broader dietary supplement community. Products covered by the law are subject to age verification at the point of sale, whether brick-and-mortar stores or websites. Additionally, companies involved in the “delivery sale” of covered products (including all online sales to New York residents) must perform age verification at the point of delivery.
The requirements above already impose significant burdens on the targeted industry segments, but the outstanding vagueness of the law’s scope should command the attention of the broader community. While covered products include dietary supplements “labeled, marketed, or otherwise represented for the purpose of achieving weight loss or muscle building,” the law also requires that courts consider a wide range of additional elements that could justify applying the restrictions to a product.
These elements include “whether the product or its ingredients are otherwise represented for the purpose of achieving weight loss or building muscle” or whether the product appears on the same webpage or in the same physical area of a store as weight loss or muscle-building products. The only exclusion is for protein products that contain no other ingredients that might separately subject the product to these restrictions.
The uncertainty and breadth of the New York law’s scope are confounding, and they should concern the dietary supplement community as a whole. If allowed to take effect, the law would place manufacturers at the mercy of retailers and potentially any third party who disseminates (mis)information about the individual ingredients in their products. It remains entirely possible that, if enforced as written, the law would restrict sales of dietary supplements entirely outside of the weight loss and muscle-building categories.
As the American Herbal Products Association (AHPA) and the aligned trade seek clarity on how New York regulators would enforce this vague standard, the bill already faces more direct opposition. The Natural Products Association (NPA) has filed a complaint seeking an injunction halting enforcement of the law and a judgement declaring that the law is unconstitutional on multiple grounds. After seeking an extension of time, the New York attorney general is now expected to respond by February 1.
On the other side of the country, California Assembly Bill 82 (AB 82) has already moved through committee hearings and has just passed the state Assembly. AB 82 is currently identical to a previous bill that was vetoed by Governor Gavin Newsom (D) in 2022. In his veto message, Newsom explained the previous bill would have created too great a burden on regulators to determine what products are covered (a burden that would practically be shared with industry). Additionally, Newsom called on state regulators to identify how the vetoed bill could be revised and made functional.
Subsequently, the working group established to fulfill that request — which included a significant presence from STRIPED — submitted a report to Newsom's office. However, because the report has not been released publicly, the actual scope and fate of this legislation remain entirely up in the air. Specifically, it is unclear whether the bill will be modified to accommodate the report’s findings or whether the working group has recommended an approach that can be accommodated entirely through enabling regulations or policy. This uncertainty has not, however, prevented state legislators from moving the bill to the Senate in its current form.
Additional dietary supplement restriction bills have reemerged this year, and each proposes radically different requirements. In Maryland, Senate Bill 47 is a clone of a bill introduced last year that restricts weight loss (but not muscle-building) dietary supplements, and it would impose the same age verification requirements at the point of sale and, for “delivery sales,” at the time of delivery. The Maryland bill has an unspecific exemption for dietary fiber products, but protein products would not be exempted as they are in New York. Unlike any other bills under consideration, this legislation would still require that retailers physically restrict access to covered products, which may cause some retailers to not carry them at all.
In New Jersey, Assembly Bill 1848 is based on a previous version of STRIPED’s model legislation. While it would restrict sales of only muscle-building dietary supplements and appears silent on its applicability to online sales, its restrictions would apply to any dietary supplement “sold for or used with the intent to” build muscle. This standard could apply to numerous products not even designed for such a purpose. AB 1848 bill also includes the same exception for protein products found in the New York law.
In Massachusetts, the home of STRIPED, Senate Bill 1465 represents the latest model for state legislation. It combines New York’s sale and delivery age restriction requirements with an ambiguous scope that would allow, but would not require, the Massachusetts attorney general to consider the same wide-ranging factors as in New York. However, it contains no exceptions for protein or fiber dietary supplements.
Collectively, these bills exemplify the fundamental long-term hazard that state dietary supplement restriction laws present for the entire dietary supplement industry — the emergence of a highly inconsistent, 50-state patchwork of restrictions that cover different products and impose different burdens, maximizing the cost of making our products available to consumers nationwide.
AHPA and aligned trade associations have reliably expressed opposition to state legislation that would single out a category of products for sales restrictions. However, with one law now enacted in New York and numerous other bills across the U.S. moving forward rapidly, the dietary supplement industry must coalesce around a consistent strategy that can head off the precedent of a chaotic multistate restriction scheme.
Robert Marriott is the director of regulatory affairs for the American Herbal Products Association (AHPA), overseeing legislative and regulatory developments affecting the herbal products and dietary supplements industries. In addition, he serves as an associate editor for the Journal of Dietary Supplements. Marriott holds a Master of Arts degree in Communication Science and a Juris Doctor, both earned at the Pennsylvania State University.
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