In an email to us this morning, Daniel Fabricant, PhD, president and CEO at NPA, stated: “The NYAG did not raise anything in its pre-conference letter to the court that NPA and its counsel had not already prepared for.”
Restrictions
New York Governor Kathy Hochul put her signature to A.5610/S.5823 last October, with the law expected to go into effect in April.
The law restricts the sale of weight loss and sports nutrition dietary supplements to New York consumers under the age of 18. It defines dietary supplements for weight loss or muscle building as: products labeled, marketed or otherwise represented for the purpose of achieving weight loss of muscle building, but not including protein powders, protein drinks and foods marketed as containing protein unless those products contain an ingredient other than protein which would, considered alone, constitute a dietary supplement for weight loss of muscle building.
Examples of those ingredients include creatine, green tea extract, raspberry ketones, Garcinia cambogia and green coffee bean extract, according to the text of the bill.
NPA filed a lawsuit against the restrictions in December in the U.S. District Court for the Eastern District of New York, arguing that the Federal Food, Drug, and Cosmetic Act (FDCA) preempts enforcement of New York’s law. The association’s lawsuit also states that the new law, “in combination with other provisions in New York’s General Business Law, improperly allows for private causes of action, which are exclusively in the purview of the FDA”.
FDCA
In a letter to the court, the NY AG's office requests a pre-motion conference regarding an anticipated filing of a motion to dismiss the complaint, NY Assistant Attorney General Patricia Hingerton stated that while the FDCA does expressly preclude states from “imposing, directly or indirectly, any labeling requirement that is not identical to the federal requirement”, this provision “has no application here, however, because the Act does not impose any new or different labeling requirement on any products sold by dietary supplement vendors”.
Hingerton also stated that the Act “does not facially discriminate against interstate commerce”, and she challenged NPA’s assertion that the claims in the Act are void because the terms “muscle loss” and “weight building” are undefined.
NPA responds
Speaking with NutraIngredients-USA last week before the NY AG’s office motion to dismiss was filed, Dr. Fabricant said his association expected an attempt to dismiss the lawsuit.
"That then opens up a number of doorways," he said. "We’ll respond to their response."
NPA has long been sounding the alarm bells about the potential impact of these Acts, calling this and similar bills in other states "extinction level events for the sports nutrition category."
"These bills are based on hysteria," Dr. Fabricant said previously. "There’s no scientific fact behind them. When you look at creatine, it’s one of the most studied ingredients on the planet."
NPA continues to call for all brands involved in sports nutrition and weight management to come to the table and join the fight.
Editor's Note: An earlier version of this article stated that the NY AG's office had filed a motion to dismiss. That was incorrect - the NY AG's office has requested a pre-motion conference regarding an anticipated filing of a motion to dismiss the complaint. We apologize for this error.
