The Council for Responsible Nutrition (CRN) has filed an appellate brief in the U.S. Court of Appeals, challenging U.S. District Court Judge Andrew L. Carter’s denial of the association’s request to place a preliminary injunction against a New York law banning sales of weight loss and muscle building supplements to minors. The association sought a preliminary injunction which would prevent the law from going into effect until its lawsuit was settled.  

The brief is part of an interlocutory appeal initiated by CRN, as the original action continues to progress in court.

As the association’s lawsuit, which claims that the age restriction infringes upon the First Amendment, continues to progress in court, the new appeal submitted to the U.S. Court of Appeals for the Second Circuit filed on July 3 seeks to “address critical issues with the district court’s interpretation of the New York law’s constitutionality, particularly around the First Amendment and the law’s vague language,” CRN stated.

CRN’s brief outlines several concerns with the district court’s preliminary injunction decision, as the basis for an interlocutory appeal, and contends that the court erred in its decision that CRN’s suit is unlikely to prevail on the merits of its claims, centered around the first amendment and the constitutionality of the infringement.

CRN claims that Carter incorrectly downplayed CRN’s First Amendment Concerns on the grounds that the law regulates conduct, not speech.

“This analysis missed a critical step in analyzing whether the law infringes on the First Amendment, namely, as another federal appellate court described, ‘whether enforcement authorities must examine the content of the message that is conveyed to know whether the law has been violated.’ Even if the restriction itself (an age limit on sales) is ‘conduct,’ it can implicate the first amendment if the trigger (a weight loss or muscle building claim) is a content-based limitation on ‘speech.’” CRN stated.

CRN also claimed that Carter erred in the determination that the age restriction law was not unconstitutionally vague. Carter determined that the law had to be vague “in all applications” for CRN to be able to bring a challenge and that the “plain language of the statute is uncompromisingly clear.”

CRN argued the opposite in its briefs and through CRN member declarations from retailers and manufacturers, arguing that businesses need to “chill truthful legal speech” and restrict access to a broad range of products unnecessarily to avoid the risk of penalties.

Finally, the new brief challenges the court’s decision regarding whether the age restriction law is preempted by the Federal Food, Drug, and Cosmetic Act (FDCA), which provides the key regulatory framework for dietary supplements.

“Our decision to pursue this appeal underscores our commitment to protecting the rights of our members and the consumers they serve,” said Steve Mister, president and CEO of CRN. “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.”

“This case is pivotal not only for our industry but for the protection of commercial speech and the right to communicate truthful information across a broad range of lawful products. We are confident in the strength of our agruments and remain determined to see this law overturned,” Megan Olsen, senior vice president and general counsel of CRN, said.