On March 13, CRN filed a lawsuit New York’s Southern District challenging the constitutionality of the law, which the association contends would restrict consumer access to safe and beneficial health products and have severe and unintended negative consequences on the operations of brick-and-mortar and online retailers doing business in the state.
Taking this further, CRN’s new motion argues that the law violates the New York and United States constitutions and should be invalidated because it is ambiguous, chills speech, is an excessive use of the state’s police powers and is preempted by certain Food, Drug, and Cosmetic Act provisions.
"This new law was pushed by social advocates relying on an unscientific and meritless argument that dietary supplements somehow cause eating disorders in young people, when the research shows they do not," said Steve Mister, president and CEO at CRN. "If we stand by and allow this law to go into effect, it won’t help young people with eating disorders, but it will stop families in the Empire State from purchasing the trusted nutrition products they use to keep their families healthy."
CRN filed a temporary restraining order and preliminary injunction earlier this week, asking the court to stop the state Attorney General from enforcing it until the issues the association has identified in the litigation have been resolved.
In an order filed yesterday, U.S. District Court Judge Andrew L. Carter denied the temporary restraining order (TRO).
"The TRO was denied merely as a matter of procedure in lieu of a hearing on the full motion for preliminary injunction being heard before the court next Wednesday," explained Jeff Ventura, vice president of communications at CRN.
The details of the law
New York Governor Kathy Hochul put her signature to the bill at the end of October 2023 after vetoing a similar bill in December 2022.
The New York bill 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.
CRN contends the law is particularly unclear on what is required of businesses and which products are impacted. It could be interpreted in different ways and could lead responsible, well-meaning manufacturers and retailers to run afoul of the law without even realizing it, according to the association. Likewise, it will lead cautious marketers to chill their truthful and lawful communications with consumers for fear of triggering the restrictions.
“Right now, this law is wide open to interpretation and incredibly ambiguous in terms of how it gets enforced,” Mister said. “This vagueness will create uncertainty in the retail marketplace, which will ultimately result in retailers deciding not to sell many dietary supplement products, as they will err on the side of caution in an attempt to not break this ill-defined law.
“In the end, consumers will have less products to choose from when they go to the pharmacy, grocery store or when placing orders online.”
The legislation is expected to go into effect on April 22.
“We’re racing the clock,” Mister told us yesterday.
Lawsuits
The Natural Products Association filed a lawsuit against Letitia James, in her official capacity as New York Attorney General, in December 2023 in the Eastern District of New York. The lawsuit argues 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."
The office of the NY AG requested a pre-motion conference regarding an anticipated filing of a motion to dismiss the complaint, and NPA recently requested a pre-motion conference to discuss the filing of a motion for a preliminary injunction to enjoin the state AG “from enforcing or otherwise requiring compliance” with the law until the case is resolved.
