In a letter to Judge Joan Azrack in the Eastern District of New York, NPA has requested a Pre-Motion Conference to discuss the filing of a Motion for Preliminary Injunction to prevent the New York Attorney General from enforcing a law that restricts the sale of weight loss and sports nutrition dietary supplements to minors in the state of New York until a lawsuit challenging the law is resolved.
The legislation (A.5610/S.5823) is expected to go into effect on April 22.
“Anytime you seek injunctive relief at the outset of a case, you're really saying we'd like everything to be enjoined now, and then we still want to litigate our case,” Kevin Bell, partner at Arnall Golden Gregory and counsel for NPA, told NutraIngredients-USA during a video interview.
“It is not the norm to grant this type of set of injunctive relief,” he added. “It also makes the other side—the New York AG—kind of lay out their positions early in the case, which is usually a litigation strategy, [there’s] a strategic benefit to that.”
Bell explained that he expects the New York AG’s office to do two things: The first is to oppose the permanent injunction motion and then also a combined letter motion in support of a motion to dismiss the case, which is something that they threatened a couple months ago and was presumed to happen again.
“I think the next thing would be we have to respond to that,” Bell said. “We have about seven days to do that and will probably do it before then. And then the judge will most likely have a telephonic conference with counsel.”
Vague language
One of the key criticisms of the legislation, which New York Governor Kathy Hochul signed into law at the end of October, is around the vagueness of the language.
The law 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 ketone, Garcinia cambogia and green coffee bean extract, according to the text of the bill.
“We go back to the governor's veto memo, where she even said it was unclear as to what's covered and what's not,” said Daniel Fabricant, PhD, NPA’s president and CEO, referring to the memo that Gov. Hochul signed in 2022 to veto a similar bill. “And so how did we, as an industry, really have any clarity? And I think that that's really the challenge we're up against.”
Dr. Fabricant called on industry stakeholders to join the fight, calling the law and others like it that are making their way through legislatures in other states “slippery slope proposals.”
“Folks can't sit on the sidelines anymore,” he said. “But you have to stand up and fight or what are you doing? Why are you in the industry if you don't believe in it enough to fight and put things in place for longer term thinking? Because even if we are successful in New York […], there are at least seven other states that have touched, you know, touch this area, and they're not going to go away based on this alone. So we're in for a long haul fight, and everyone needs to step up and get involved and make sure they've got resources allocated to this.”
Watch the video for the full interview.
