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December 5, 2023
The Natural Products Association has filed a lawsuit in New York seeking to have a state law that restricts the sale of some weight loss and muscle building supplements struck down on constitutional grounds.
The suit was filed on Dec. 4 in U.S. District Court for the Eastern District of New York. The suit is challenging the constitutionality of a bill signed into law in late October by New York Gov. Kathy Hochul.
New York Assembly Bill A6510D/Senate Bill S5823C prohibits the sale to minors of over-the-count (OTC) diet pills and dietary supplements for weight loss or muscle building.
It is set to take effect in late April 2024, or six months after getting Hochul’s signature.
At the time it was signed, it was widely expected that it would face legal challenges.
Former Maryland State Attorney General Doug Gansler, who is chair of the State Attorneys General Practice with the law firm Cadwalader, Wickersham & Taft LLP, said at the time of the bill’s passage that it was vaguely worded, making it vulnerable to a possible challenge.
“It’s a little surprising that the AG’s office didn’t sort of tighten this bill to make it more likely to pass constitutional muster,” Gansler said during a webinar hosted by the American Herbal Products Association (AHPA).
“The bill is very poorly drafted,” attorney Marc Ullman with the firm Rivkin Radler said. When it was first passed, Ullman noted that it contained many ambiguities, such as precisely what products are covered by the legislation.
NPA’s suit alleges the law is unconstitutional on several grounds. It contends that the law is preempted by the Federal Food, Drug and Cosmetic Act, which delegates regulation of dietary supplements to the Food and Drug Administration.
It also contends the law violates the portion of the U.S. Constitution referred to as the Commerce Clause, which gives grants Congress the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” According to the Legal Information Institute, a project of Cornell Law School, “The Commerce Clause has historically been viewed as both a grant of congressional authority and as a restriction on the regulatory authority of the states.”
Daniel Fabricant, Ph.D., president and CEO of NPA, said he believes the suit has a good chance to succeed.
“We don’t start these things to lose,” he told Natural Products Insider. “We believe the court will recognize the serious concerns raised and declare it unconstitutional.”
“Not only is this unconstitutional, but this prohibition is a bad policy threatening the ability of nearly 80% of Americans to access wellness products they’ve relied on for their health routines,” he added.
Fabricant noted that in NPA’s view there is no basis to the assertion that use of dietary supplements somehow exacerbates eating disorders. Nevertheless, the notion has gained traction in some state legislatures and will require the vigilance of industry to combat further legislative efforts in the future.
“The whole platform in based on this emotional plea, not on facts,” he said.
NPA is seeking to have the law declared unconstitutional on the preemption or commerce consideration. It is also seeking an injunction to prevent enforcement of the law.
Senior Editor, Informa
Hank Schultz is senior editor of Natural Products Insider. He is an experienced journalist with a long career in daily newspapers followed by more than a decade in the natural products industry. When he's not in front of a computer, Hank can be found on a bicycle, a mountain trail, the gym or at the helm of a sailboat.
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