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Industry fights New York age limit for supplements

As New York state pushes forward with its regulation imposing an age limit for certain weight loss and muscle-building supplements, the nutraceutical industry is pushing back.

In the US, a battle over supplements has been brewing for months. As New York proposed and enacted an age limit ban on certain supplements, some of the country’s leading trade associations have argued against its implementation and appealed the decision.

The law on supplements

The legislative tussle over supplement marketing started on 25 October 2023, when New York passed legislation known as GBL 391-oo. The new law prohibits the sale of over-the-counter dietary supplements for weight loss and muscle building to consumers under 18 years old.

The law, which took effect on 22nd April 2024, requires physical and online retailers to confirm a customer’s age before they make a sale or when delivering products.

While New York was the first state to implement this legislation, others hope to follow suit. States, including California, Massachusetts, New Jersey and Rhode Island, are also exploring similar measures and have bills at various stages.

Arguing against the law’s implementation

After the New York State Senate published the legislation, the food and nutrition industry expressed concerns about its content. US law firm Kelley Drye also commented, saying the regulation’s language is quite broad overall, which can make compliance challenging.

In December 2023, the Natural Products Association, a leading non-profit organisation, started legal proceedings to stop the law from coming into effect on constitutional grounds.

On 13 March 2024, the Council for Responsible Nutrition (CRN), another dietary supplement trade association, also filed a suit to stop the law from being enacted. In the suit, CRN sets out several points relating to constitutional hurdles, a lack of scientific underpinnings, and economic and practical burdens.

Firstly, CRN says the new law violates constitutional principles by restricting lawful commercial speech. According to the supplement trade association, the law excessively limits lawful commercial speech by regulating all covered products without considering their accuracy.

The law has been designed, in part, to prevent eating disorders among minors. Yet, CRN is also arguing that there is no solid evidence proving a direct link between the restricted products in the law and eating disorders. The trade association says the state has provided a lack of substantiated claims to support this basis. In addition, it has given studies that purport to support the safety of prebiotic fibre supplements in addressing childhood obesity, which are also covered by the law.

“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,” says Steve Mister, president and CEO of CRN, on this point.

CRN believes the law’s broad definitions and lack of specificity could lead to considerable economic hurdles for the food and nutrition industry. Without clear guidance and the risk of significant financial penalties for violations, CRN says this limits the sale of retailers' and marketers’ products with legitimate claims.

CRN’s suit claims the law violates constitutional rights to access truthful health information by unnecessarily limiting consumer access to beneficial dietary supplements. According to the trade association, the regulation does not provide any proven health benefits or enhance public safety. Although a federal district court denied a preliminary injunction in April 2024, CRN is still pursuing its legal challenge.

Appealing, once again

On 3 July, the CRN filed its appellate brief in the US Court of Appeals for the Second Circuit. The appeal aims to address key concerns regarding the district court’s interpretation of the law’s constitutionality. The focus is primarily on the First Amendment and the law’s ambiguous language.

CRN argues that the district court made errors in assessing whether the law was unconstitutionally vague. The association says this vagueness has led to uncertainty for retailers and manufacturers regarding which products apply under the law and how they can comply.

“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,” says Megan Olsen, senior vice president and general counsel of CRN. “We are confident in the strength of our arguments and remain determined to see this law overturned,” adds Olsen.

Industry support

The US Chamber of Commerce, the Consumer Healthcare Products Association (CHPA), FMI – The Food Industry Association and the National Association of Chain Drug Stores (NACDS) are backing the CRN’s ongoing legal efforts.

On 11 July 2024, the four organisations filed an amicus, or friend of the court, brief in the US Court of Appeals for the Second Circuit. The brief supports CRN’s challenge against New York’s General Business Law § 391-oo, which restricts certain dietary supplement sales based on their labelling and marketing.

“We are grateful for the robust support in this critical legal challenge and the backing of the US Chamber, CHPA, FMI and NACDS,” says Mister. “The amicus brief articulates the fundamental issues at stake, not just for the dietary supplements industry, but for all businesses that rely on their right to communicate freely about their products,” adds Mister.

In its amicus brief, the US Chamber of Commerce emphasises the importance of this case for the broader business community. It points out that the statute’s use of speech as a basis for legal restrictions sets a concerning precedent that could impact various industries.