NY judge strikes down most of CRN’s case against new law

A judge has dismissed all claims except for a First Amendment cause of action in CRN’s lawsuit that aims to overturn a law restricting the sale of some supplements in the state of New York. Minors now cannot buy weight management or muscle-building supplements in the state because of a concern from the legislature that they may exacerbate eating disorders.

Hank Schultz, Senior Editor

May 14, 2024

3 Min Read

At a Glance

  • CRN is seeking to overturn a New York law restricting some supplement sales.
  • The law prevents sales to minors of weight loss and muscle-building supplements.
  • CRN's First Amendment claim survives, even though the judge suggested it was unlikely to ultimately succeed.

A federal judge has dismissed all claims but a First Amendment cause of action in a lawsuit filed by the Council for Responsible Nutrition. The lawsuit aims to overturn a New York state statute that restricts the sale of some dietary supplements.

Yesterday, Judge Andrew L. Carter Jr. of the U.S. District Court for the Southern District New York granted most of State Attorney General Letitia James’ motion to dismiss CRN’s lawsuit. (Read the opinion and order here).

The portion of CRN’s case that survives centers on an argument that the law in question, New York Assembly Bill A5610, unconstitutionally restricts First Amendment free speech rights.

CRN had earlier failed to secure an emergency injunction to prevent the law from taking effect in the first place.

Supplement sales restriction has been in effect for more than two weeks

The New York law, which went into effect on April 22, restricts the sale of weight loss or muscle building supplements to minors within the state. Sellers, including online retailers, must incorporate age-verification methods.

The statute says a court shall consider, but is not limited to, several factors in “determining whether an over-the-counter diet pill or dietary supplement is labeled, marketed, or otherwise represented for the purpose of achieving weight loss or muscle building.” Critics of the law argue it’s vague and could unduly restrict access to a broad range of supplements, not just muscle-building or weight loss products.

Related:CRN’s lawyers have their work cut out in NY litigation—to put it mildly

The reason behind the law involves an assertion on the part of academics associated with the Strategic Training Initiative for the Prevention of Eating Disorders (STRIPED) that these kinds of supplements — and the messages used to market them — exacerbate eating disorders among young consumers. STRIPED is based at the Harvard T.H. Chan School of Public Health and Boston Children’s Hospital.

CRN has stridently maintained there is no credible scientific evidence to support a connection between eating disorders and use of supplements.

First Amendment claim will move forward

In his May 13 opinion and order, Carter ruled that CRN has plausibly alleged a First Amendment claim. However, he also determined the trade group has failed to plausibly allege the New York statute is void for vagueness or represents an excessive use of police powers. The judge also ruled that CRN’s preemption challenge fails.

“When accepting all of the factual allegations in the amended complaint as true and drawing all reasonable inferences in plaintiff’s favor, the Court finds that CRN has met its minimum burden to suggest a First Amendment injury,” Carter wrote. “While the Court has expressed serious doubt about CRN’s likelihood of success on the merits — namely that even if the statute implicates the First Amendment, it likely survives intermediate scrutiny— we cannot conclude at this stage that plaintiff has failed to plead factual allegations to sufficiently ‘raise a right to relief above the speculative level.’”

Carter referred the case to Magistrate Judge Gary Gorenstein for discovery on CRN’s First Amendment claim.

“Even as we prepare to appeal the trial judge’s earlier decision on our preliminary injunction, we are encouraged by his ruling yesterday on our First Amendment argument,” Steve Mister, president and CEO of CRN, told Natural Products Insider in an email. “The judge denied the state of New York’s motion to dismiss our allegations that the age restriction law infringes on lawful commercial speech and violates the constitutional rights of our members to make truthful and lawful claims for their products.

“In holding that the restrictions ‘may very well regulate protected speech,’ this decision allows us to move forward on the merits of the case,” Mister added. “The judge has already recognized that CRN has standing to pursue these claims on behalf of our members. Yesterday’s ruling was another milestone toward invalidating these illegitimate restrictions. We are confident in the strength of our legal arguments.”

The New York attorney general did not immediately respond to a request for comment before publication time.

A similar lawsuit to overturn the law filed by the Natural Products Association is pending in the U.S. District Court for the Eastern District of New York.

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.

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