The Council for Responsible Nutrition (CRN) is filing a lawsuit challenging the constitutionality of a New York law that would restrict access to “weight loss” and “muscle building” products to consumers.
 
Filed in Federal court in the Southern District of New York, the suit seeks an injunction to prohibit enforcement of the law, which was passed by the New York legislature and signed by Governor Kathy Hochul on Oct. 25, 2023. The law is scheduled to take effect this April.
 
The stated purpose of the law is to prevent eating disorders, but CRN President and CEO Steve Mister said “there is no credible scientific evidence demonstrating a causal link between dietary supplements and such disorders.”
 
“CRN’s Board of Directors did not reach this decision lightly,” Mister said during a press conference on March 13 at Natural Products Expo West. “Our initial strategy was to work with legislators, the governor, and the AG’s office to develop reasonable solutions that address legitimate concerns about the rise in eating disorders. But having exhausted those avenues, we must ask the courts to protect the rights of our members, retailers, and consumers in New York.”
 
The law is designed to ban both in-person and internet/mail order sale of certain weight loss and muscle health supplements to consumers under the age of 18 and requires age verification as a means of enforcement.
 
“The law’s broad and ambiguous definitions of ‘weight loss’ or ‘muscle building’ products will lead retailers and marketers of dietary supplements to restrict sales of a broad range of products containing truthful and otherwise lawful claims for fear of prosecution, with fines up to $500 per violation,” said Mister.
 
“We know that age restrictions on products inevitably lead to restrictions on access for everyone,” he added. “Faced with potential fines, and without guidance from the state, stores are likely to cast an overly broad net on what is covered, and some retailers will either discontinue those products entirely or remove them from self-service availability, which means behind the counter or in locked cabinets. That prevents all consumers, regardless of age, from having widespread access to beneficial products.” 
 
The law would effectively punish “truthful, otherwise lawful communications … based on representations communicated about a product, rather than the actual safety of the product itself,” according to Mister.
 
The law also offers little guidance for compliance, “leaving manufacturers, distributors, retailers, and consumers guessing as to which products are covered under the new legal requirements,” said Mister.
 
“In that environment, retailers and marketers must over-restrict, thereby chilling legitimate commercial speech, and preventing consumers from having access to both the products and truthful information about their health benefits or increasing the cost and ability to easily access beneficial health products.”
 
CRN’s lawsuit seeks to enjoin the enforcement of the law, arguing that it runs afoul of the federal and New York constitutions by imposing age-based restrictions on dietary supplements based on vague conditions. The lawsuit also argues that the law produces seemingly illogical results by restricting products that are not marketed for weight loss or muscle building and are widely recognized as safe.
 
CRN’s complaint argues that by creating age restrictions on dietary supplements based on expansive, imprecise guidelines, “the law imposes sanctions on lawful behavior and protected commercial speech, while leaving parties who want to comply guessing as to which products are covered.”
 
CRN’s complaint is available here.