NPA challenges constitutionality of NY law that restricts sale of weight loss, muscle building supplements

The Natural Products Association has filed a suit that alleges that a NY law restricting some supplement sales in unconstitutional on several grounds.

Hank Schultz, Senior Editor

December 5, 2023

3 Min Read

At a Glance

  • NPA has challenged constitutionality of NY law restricting some supplement sales.
  • Law is based on disputed assertion that supplement use can exacerbate eating disorders.

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. 

Challenge was expected 

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). 

Related:New York prohibits diet pills, weight loss supplements sold to minors

“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. 

Suit raises several constitutional questions 

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. 

NPA: Argument based on emotion, not facts 

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. 



About the Author(s)

Hank Schultz

Senior Editor, Informa

Hank Schultz has been the senior editor of Natural Products Insider since early 2023. He can be reached at [email protected]

Prior to joining the Informa team, he was an editor at NutraIngredients-USA, a William Reed Business Media publication.

His approach to industry journalism was formed via a long career in the daily newspaper field. After graduating from the University of Wisconsin with degrees in journalism and German, Hank was an editor at the Tempe Daily News in Arizona. He followed that with a long stint working at the Rocky Mountain News, a now defunct daily newspaper in Denver, where he rose to be one of the city editors. The newspaper won two Pulitzer Prizes during his time there.

The changing landscape of the newspaper industry led him to explore other career paths. He began his career in the natural products industry more than a decade ago at New Hope Natural Media, which was then part of Penton and now is an Informa brand. Hank formed friendships and partnerships within the industry that still inform his work to this day, which helps him to bring an insider’s perspective, tempered with an objective journalist’s sensibility, to his in-depth reporting.

Harkening back to his newspaper days, Hank considers the readers to be the primary stakeholders whose needs must be met. Report the news quickly, comprehensively and above all, fairly, and readership and sponsorships will follow.

In 2015, Hank was recognized by the American Herbal Products Association with a Special Award for Journalistic Excellence.

When he’s not reporting on the supplement industry, Hank enjoys many outside pursuits. Those include long distance bicycle touring, mountain climbing, sailing, kayaking and fishing. Less strenuous pastimes include travel, reading (novels and nonfiction), studying German, noodling on a harmonica, sketching and a daily dose of word puzzles in The New York Times.

Last but far from least, Hank is a lifelong fan and part owner of the Green Bay Packers.

Subscribe and receive the latest insights on the health and nutrition industry.
Join 37,000+ members. Yes, it's completely free.

You May Also Like