New York law targeting dietary supplements violates free speech, CRN lawyer arguesNew York law targeting dietary supplements violates free speech, CRN lawyer argues

On Jan. 24, an attorney for the Council for Responsible Nutrition argued before an appeals court that a New York law infringes on commercial speech in violation of the First Amendment and that a lower court should have issued a preliminary injunction against enforcement of the statute.

Josh Long, Associate editorial director, SupplySide Supplement Journal

January 27, 2025

6 Min Read
U.S. Court of Appeals for the Second Circuit
The Council for Responsible Nutrition is awaiting a ruling from a three-judge panel of the U.S. Court of Appeals for the Second Circuit. CRN maintains a U.S. District Court should have granted a preliminary injunction against a New York law that restricts minors' access to weight-loss and muscle-building dietary supplements. Editorial credit: Heidi Besen / Shutterstock.com

A New York state ban on the sale of certain dietary supplement products to minors burdens commercial speech in violation of the First Amendment, a lawyer for the Council for Responsible Nutrition (CRN) argued last week before the U.S. Court of Appeals for the Second Circuit.

On Jan. 24, esquire Tamar Wise sought to convince a three-judge appellate panel that a lower court should have granted a request for a preliminary injunction against enforcement of a New York law. The statute, which took effect in 2024, prohibits sales to minors of OTC diet pills and dietary supplements marketed for weight loss and muscle building.

Circuit judges Denny Chin, Myrna Pérez and Alison Nathan peppered Wise and a New York state lawyer with questions throughout the 22-minute hearing.

In an April opinion and order, Federal Judge Andrew Carter denied CRN’s request, holding the trade group was unlikely to succeed on the merits of its claims and that granting an injunction would not be in the public interest. Commenting on CRN’s free speech arguments, the judge described New York’s age restriction as “merely an incidental burden on commercial speech” that regulates conduct and does not implicate the First Amendment.

CRN filed an appellate brief in July to challenge Carter’s denial of its request for a preliminary injunction, and Wise contested the judge’s conclusion in her Jan. 24 oral arguments. She cited case law in the Second Circuit and U.S. Supreme Court to support CRN’s position that the New York state law implicates the First Amendment.

Related:California weight loss supplements bill dies in legislature

“Here, what’s facially being regulated is the sale of the product but what triggers the regulation is speech,” Wise, a member of the law firm Cozen O’Connor, said. “And that’s distinct from all the other cases that the district court relied on, where there is some kind of incidental downstream effect on speech.”

Per Carter’s order, issuing a preliminary injunction requires a finding that the moving party – in this case CRN – demonstrates a likelihood of success on the merits of its case, will suffer irreparable harm without the injunction, and that the public interest weighs in favor of granting the request.

In response to a question from Circuit Judge Denny Chin, Wise characterized the irreparable harm in the case as “the constitutional violation,” and she added that “courts have held that a constitutional violation is a per se finding of irreparable harm.”

“What about the balancing of the public interest?” Chin asked. “You’ve got the desire to protect minors from potentially dangerous products. Assuming there’s an infringement on the First Amendment rights — what seems like a relatively modest one because they can still speak. They just have to limit the sales to those 18 and above.”

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

Wise responded the First Amendment inquiry is subject to the so-called Central Hudson test articulated in a 1980 case (Central Hudson Gas & Elec. v. Public Svc. Comm'n) by the U.S. Supreme Court, “which requires a showing that there’s a material and direct advancement of a government interest.”

“And here our position is that there is no showing,” she added. “There’s no substantiation in the record, and so absent that direct and material advancement of a substantial government interest … there is no public interest that outweighs the sacrifice of speech.”

Chin asked, “The record doesn’t show that there is a danger presented when younger folks take these diet pills and products?”

“Your Honor, respectfully, the record does not reflect that at all,” Wise said. “The record does not reflect that there is any relationship between the way that a product is marketed and any harm in children.”

A representative of the office of New York Attorney General Letitia James, which is defending the law, disagreed with Wise’s conclusions. State attorney Grace Zhou argued the New York statute fails to implicate the First Amendment, and even if it did, the law “amply clears the Central Hudson test” and is constitutional. She explained “the substantial state interest here is in safeguarding public health and that of minors in particular.”

The New York statute “restricts a class of products that are intended to aid weight loss and muscle building. And labeling and marketing is only one of several indicia that the AG and courts shall look to in order to determine what the intended use of a product is,” Zhou explained. “This examination of speech only in aid of categorizing and subjecting a product to a regulatory regime does not implicate the First Amendment. And in fact, consumer products widely are defined and regulated according to their intended use.”

She cited drugs as a “prime example” under the Federal Food, Drug & Cosmetic Act (FDCA).

“Under the FDCA, if a manufacturer claims that a product is intended to mitigate or to cure a disease, then it qualifies as a drug and that triggers a whole host of regulatory requirements, for example, FDA pre-approval,” Zhou said. “But if a manufacturer does not make or omits such a claim, then that product would be exempt from these types of regulations. But it really would be a stretch to say that the FDCA’s definition of a drug and the FDA’s regulatory regime surrounding drugs really is a content-based burden on manufacturers’ rights to make specific types of claims.”

But if the First Amendment is implicated by the statute, one of the two female circuit judges asked whether the state faces the burden of showing dietary supplements cause eating disorders.

Zhou responded “a direct causal link” is not required.

“I think what the state has to show is that the consumption of these products [involves] real harm to minors, both bodily harm such as emergency room visits or damage to organs, and also are associated with other body harm issues, such as eating disorders,” the state lawyer said.

Zhou added, “I think that the record amply shows that here. We both have scientific studies that show that the consumption of this category of products is an unhealthy weight control behavior that can serve as a gateway to further escalating behaviors that are associated with eating disorders. And we also have a lot of anecdotal evidence.”

CRN has maintained there is no causal connection between dietary supplements and eating disorders. And on rebuttal before the oral arguments concluded, Wise disagreed with the state’s view that labeling and marketing representations are only one indicia of how the dietary supplements are regulated under the statute.

Chin did note the statute lists certain ingredients that can be considered in determining whether a product is marketed for achieving weight loss or muscle building. Those ingredients include, for example, creatine, green tea extract and raspberry ketone.

Wise responded, “If that’s the only list of ingredients that’s a problem, then the statute should just stick with those list of ingredients and not then start to burden speech and turn to the marketing of a product.”

She further suggested the U.S. Supreme Court has made it clear that the state of New York must demonstrate that what’s it’s regulating “will actually solve the problem.”

“There is zero evidence in the record that you can look to a product simply based on its marketing and show that it has a harmful effect,” CRN’s lawyer asserted.

About the Author

Josh Long

Associate editorial director, SupplySide Supplement Journal, SupplySide Supplement Journal

Josh Long has been a journalist since 1997, holds a J.D. from the University of Wyoming College of Law, and was admitted to practice law in Colorado in 2008. Josh is the legal and regulatory editor with Informa's Health and Nutrition Network, specializing on matters related to SupplySide Supplement Journal, formerly Natural Products Insider. Ping him with story ideas at [email protected].

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