CRN appeals district court’s denial of preliminary injunction against NY law

Among its arguments in an appeal, CRN disputed the district court’s determination that the New York statute regulates conduct rather than speech.

Josh Long, Associate editorial director, Natural Products Insider

July 8, 2024

4 Min Read

The Council for Responsible Nutrition (CRN) has appealed a ruling by a federal district court to deny its request for a preliminary injunction against a New York law that restricts minors’ access to dietary supplements for weight loss or muscle building.

In April, U.S. District Judge Andrew L. Carter Jr. denied CRN’s request for a preliminary injunction, finding the trade group had not shown it was likely to prevail on the merits of its First Amendment claim that New York Assembly Bill A5610 unconstitutionally restricts protected commercial speech.

The following month, the judge (from the U.S. District Court for the Southern District of New York) dismissed all of CRN’s claims but its First Amendment cause of action. Carter determined the trade group failed to plausibly allege the New York statute is void for vagueness or represents an excessive use of police powers, and he ruled that CRN’s preemption challenge fails.

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.” Some of those factors include whether the product contains an ingredient approved by FDA for weight loss or muscle building, is a steroid or is creatine, green tea extract, raspberry ketone, garcinia cambogia or green coffee bean extract.

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

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.

Academics associated with the Strategic Training Initiative for the Prevention of Eating Disorders (STRIPED) assert these kinds of supplements — and the messages used to market them — exacerbate eating disorders among young consumers. STRIPED is based at Harvard’s 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 the use of supplements.

Interlocutory appeal

In an appellate brief filed on July 3, CRN alleged the district court committed several errors in its April ruling, which denied the organization’s request for a preliminary injunction. Among its arguments, CRN disputed the district court’s determination that the New York statute regulates conduct rather than speech.

Related:Judge dismisses NPA’s lawsuit to overturn NY law restricting some supplement sales

“The Act only regulates products based on the speech associated with them. That is, it does not regulate specific ‘dangerous’ ingredients; instead, the New York Attorney General (‘NYAG’ or ‘State’) will first have to look at the speech made about a product (potentially by any number of parties, e.g., a manufacturer, a retailer, or even an influencer) to see if the product makes structure/function claims about weight loss or muscle building,” CRN’s counsel with the law firm Cozen O’Connor explained in the brief. “And only after analyzing that content (and determining that the speech touts either of those properties), can the NYAG (or a court) determine whether the product is covered by the Act, and whether the Act proscribes the conduct in question (the sale of the product).”

CRN added “it is speech — not conduct — that determines whether a product is covered by the Act. Under decades of First Amendment jurisprudence, this is an infringement on speech that is only permissible if the state meets its burden to demonstrate that the Act survives the requisite level of constitutional scrutiny.”

The government was required, but failed, to demonstrate the New York statute “directly and materially furthers a substantial government interest and is narrowly tailored to do so,” according to CRN’s brief.

As the basis for its interlocutory appeal, CRN also articulated reasons for the district court erring in other determinations, including its findings that the statute was likely not preempted by federal law, unconstitutionally vague or an excessive use of state police powers.

CRN filed its appeal with the U.S. Court of Appeals for the Second Circuit.

“Our decision to pursue this appeal underscores our commitment to protecting the rights of our members and the consumers they serve,” CRN President and CEO Steve Mister said in a press release announcing the appeal. “The New York law is a misguided approach that will not address the complex issue of eating disorders but will instead hinder access to truthful information and products that support health and wellness.”

The office of the New York Attorney General has not responded to previous requests for comment from Natural Products Insider regarding the litigation.

In June, U.S. District Judge Joan M. Azrack ruled that another trade group challenging the law — the Natural Products Association — didn’t have standing to sue, consequently dismissing the case (in the U.S. District Court for the Eastern District of New York) without prejudice. However, NPA President and CEO Dan Fabricant said the organization is “exploring all options” and is not “done fighting this.”

About the Author(s)

Josh Long

Associate editorial director, Natural Products Insider, Informa Markets Health and Nutrition

Josh Long directs the online news, feature and op-ed coverage at Natural Products Insider, which targets the health and wellness industry. He has been reporting on developments in the dietary supplement industry for over a decade, with a focus on regulatory issues, including at the Food and Drug Administration.

He has moderated and/or presented at industry trade shows, including SupplySide East, SupplySide West, Natural Products Expo West, NBJ Summit and the annual Dietary Supplement Regulatory Summit.

Connect with Josh on LinkedIn and ping him with story ideas at [email protected]

Education and previous experience

Josh majored in journalism and graduated from Arizona State University the same year "Jake the Snake" Plummer led the Sun Devils to the Rose Bowl against the Ohio State Buckeyes. He also holds a J.D. from the University of Wyoming College of Law, was admitted in 2008 to practice law in the state of Colorado and spent a year clerking for a state district court judge.

Over more than a quarter century, he’s written on various topics for newspapers and business-to-business publications – from the Yavapai in Arizona and a controversial plan for a nuclear-waste incinerator in Idaho to nuanced issues, including FDA enforcement of the Dietary Supplement Health and Education Act of 1994 (DSHEA).

Since the late 1990s, his articles have been published in a variety of media, including but not limited to, the Cape Cod Times (in Massachusetts), Sedona Red Rock News (in Arizona), Denver Post (in Colorado), Casper Star-Tribune (in Wyoming), now-defunct Jackson Hole Guide (in Wyoming), Colorado Lawyer (published by the Colorado Bar Association) and Nutrition Business Journal.

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