New York’s weight-loss supplements law could face court challenge
Industry leaders, attorneys question the constitutionality of prohibiting sales of weight-loss and muscle-building supplements to minors. But who will challenge it?
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A bill in New York that will restrict minors’ access to supplements marketed for weight loss and muscle building could face legal challenges, industry sources said.
“We’re looking at all options because once one domino falls, they all fall and they may not fall the way we want them to,” Natural Products Association (NPA) President and CEO Dan Fabricant said Tuesday, when asked about the possibility of a lawsuit.
The bill, which was signed last week by Gov. Kathy Hochul, is “written in a way that can limit … commercial speech,” Fabricant concluded. He questioned how the bill will be implemented and expressed concern that other states will adopt similar legislation.
“Everyone’s got money for parties and for advertising, but how many folks are stepping up to fight the fight?” he asked just days after Informa, which publishes Natural Products Insider, hosted 18,000 people at SupplySide West in Las Vegas. “It’s tough to go to a trade show when you got nothing to sell in front of the counter.”
First law to impose age limits on supplements
New York Assembly Bill A5610D/Senate Bill S5823C prohibits the sale to minors of over-the-counter (OTC) diet pills and dietary supplements for weight loss or muscle building. It takes effect in six months and is the first bill in the country to impose age limits on the sale of dietary supplement products, including creatine, that have been sold lawfully in interstate commerce for years or, in some cases, decades.
Attorney Doug Gansler, a former attorney general for the state of Maryland, said he “can’t imagine” the bill “not being challenged and who knows how the courts will resolve it.” Gansler, who made those comments during a webinar Tuesday hosted by the American Herbal Products Association (AHPA), said any legal challenge will be in New York state court.
Gansler noted one of the jobs of a state attorney general is to opine on the constitutionality of every bill passed.
“It’s a little surprising that the AG’s office didn’t sort of tighten this bill to make it more likely to pass constitutional muster,” added Gansler, chair of the State Attorneys General Practice with the law firm Cadwalader, Wickersham & Taft LLP.
Gansler, who has worked with AHPA for many years following an investigation in 2015 launched into herbal supplements by then-New York Attorney General Eric Schneiderman, expressed hope that the New York bill would get overturned.