The Council for Responsible Nutrition (CRN) filed a reply brief with the United States Court of Appeals for the Second Circuit, which continues to argue for a preliminary injunction that would prevent New York’s age restriction on the sale of dietary supplements for weight loss and muscle building from going into effect until the legal challenge is settled.
 
New York’s age restriction on this category of supplements started being enforced on April 4, both for online and brick-and-mortar stores. Retailers and delivery drivers must employ several age-verification procedures to prevent the sale of certain supplements to minors.
 
The brief responds to the New York State Attorney General’s defense of a lower court’s refusal to grant CRN a preliminary injunction, pending a final outcome of CRN’s litigation which challenges the constitutionality of the New York law. The most recent brief argues that the New York Attorney General’s Office hasn’t meaningfully addressed CRN’s arguments that the law is unconstitutional.
 
Last month, CRN appealed an April ruling by a federal district court denying the association’s request for a preliminary injunction. The brief filed today continues to challenge that decision, reiterating the argument that the law violates the constitution by targeting how products are advertised, labeled, or marketed, rather than by actual health or safety concerns with specific products or ingredients.
 
The reply brief directly addresses points made by the Attorney General’s office defending the denial of the injunction, noting that First Amendment scrutiny must occur when a state’s restriction’s on a product “are triggered by the speech associated with the product.”
 
“This law in New York is not just an unnecessary burden on businesses, but it is also predicated on the unscientific notion that eating disorders are somehow caused by supplement usage, which has been shown to be untrue,” said Steve Mister, president and CEO of CRN. “What this law does do, however, is threaten to limit consumer access to products that support their health. By focusing on marketing claims rather than the actual ingredients in these products, the law violates free speech rights and could make it harder for all consumers, including adults, to purchase safe and beneficial supplements.”
 
“Our reply brief demonstrates how the New York Attorney General’s arguments to dodge the first amendment reckoning just don’t hold up,” said Megan Olsen, senior vice president and general counsel at CRN. “The law is too broad, lacks evidence to support its claims, and could lead to fewer choices, and less truthful information getting to consumers without actually protecting anyone.”
 
In its arguments, CRN has stated that the law restricts speech by targeting how products are marketed, rather than focusing on the safety of the products. It fails to clearly define what constitutes a “weight loss” or “muscle building” supplement, CRN argues, which could lead to confusion and uneven enforcement, as well as a chilling of truthful information about “metabolism,” “muscle” support, and sports nutrition out of an abundance of caution that such claims could trigger restrictions.