Could ‘vague & draconian’ NY State supplements ban extend beyond weight loss & body building?

16-Mar-2022 - Last updated on 16-Mar-2022 at 16:39 GMT

The NY State Capitol, where the State's Senate recently passed a bill to restrict the sale of dietary supplements for weight loss or muscle building. Image © lavendertime / Getty Images

The vague language of a controversial bill in the State of New York that aims to restrict the sale of dietary supplements for weight loss or muscle building could also encompass esports and creatine.

Bill S16D passed the NY State Senate with a majority vote on Thursday, March 10 and now heads to the desk of Governor Kathy Hochul. (The accompanying bill in the NY State Assembly is A431C.)

“Since the legislature is in session, the Governor has 10 days to sign or veto the bill,” explained Kyle Turk, director of government affairs for the Natural Products Association (NPA), which has strongly opposed the bill. “However, the Governor’s failure to sign or veto a bill within the 10-day period means that it becomes law automatically.

“We hope the Governor will listen to the thousands of health and wellness advocates who’ve written letters to her and the NY legislature urging opposition to this legislation.”

Turk added that the bill is two things, “vague and draconian.”

He continued: “At a time when we are facing an obesity epidemic and are coming out of the COVID pandemic, lawmakers shouldn’t be discouraging consumers from taking products that promote health and wellness.”

The devil is in the detail, but…

The bill defines “dietary supplements for weight loss or muscle building” as products that may include thermogens (substances that produce heat in the body and promote calorie burning), lipotropics (compounds that help break down fat during body metabolism), hormones (including hormone modulators and hormone mimetics), and appetite suppressants. It restricts the sale of these products to minors and dictates that the products be in limited access displays.

However, the bill excludes “protein powders, protein drinks and foods marketed as containing protein unless the [product] contains an ingredient other than protein which would, considered alone, constitute a dietary supplement for weight loss or muscle building.”

The bill does not specify which ingredients are, for example, thermogens or appetite suppressants: That determination is left to the NY Department of Health (DoH) in consultation with the eating disorder community.

“Together, they will determine which products constitute over-the-counter diet pills or dietary supplements for weight loss or muscle building,” said Turk. “However, the bill fails to grant the dietary supplement industry a voice or mechanism to be included in the decision-making process, giving the DoH and eating disorder community unchecked authority to list products arbitrarily. As a result, we will see products like creatine, branch chain amino acids, and other products prohibited.”

And since some esports products are formulated with with ingredients like caffeine, B12, and Yohimbine, these may also be impacted, said Turk.

Interstate commerce

The bill also appears to target in-State brick and mortar retailers, with no mention of ecommerce or interstate commerce.

“On its face, there may be an anti-trust issue as it targets brick and mortar disproportionally driving business out of New York-based stores toward e-commerce,” said Turk. “We raised this concern during our meetings with the sponsors, staff, and in our written testimony, citing no specific language for online retailers. Other members of the NY Senate also raised concerns with how S16/A431 unfairly targets brick and mortar retail.”

Not isolated incidents

The bill, which was described to NutraIngredients-USA by one industry stakeholder as a “slippery slope”, is not an isolated incident, noted Turk.

“Despite all the benefits our industry provides consumers, more states are attacking the dietary supplement industry on a routine basis. In previous years we’ve seen Illinois propose restricting access to supplements,” he said. “Still, just this year, we have witnessed California, New Jersey, New York, Massachusetts, Missouri, and Rhode Island all introduce legislation limiting access to dietary supplements.

“California’s state assembly passed its version, and we’re expecting the California senate to vote this summer at the height of the bill sponsor’s run for congressional office. The passage of NY S16/A431 isn’t an isolated incident. It is an example of an all-out assault on the dietary supplement industry by lawmakers who are more interested in seeing their name in press clips than working with industry stakeholders or passing meaningful legislation.”