Restrictions to dietary supplements for weight loss and muscle building for people under the age of 18 will go into effect on April 22.
Trade associations are challenging the law’s constitutionality, with the Council for Responsible Nutrition (CRN) and the Natural Products Association (NPA) attempting to have preliminary injunctions introduced to stall the law until these challenges can be litigated.
CRN’s efforts were the subject of a hearing yesterday (April 10) with U.S. District Judge Andrew L. Carter, Jr. in the Southern District of New York.
Speaking with NutraIngredients-USA, Steve Mister, CRN’s president and CEO, said: "I think one of the things that we really appreciated from that hearing is that the judge understands that this April 22 deadline is coming very quickly. And that it is a momentous date that they need to make a decision around the preliminary injunction before the law would go into effect.
"So, he has set up a briefing schedule for the Attorney General to respond to our motion, a chance for us to reply. I think we would maybe hear something sometime next week."
Vague language
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’s motion, filed last week, 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.
"We had attempted to have some conversations with the governor's office and the Attorney General's office after the passage of the law to try to seek some guidance or clarity that might have narrowed the scope of it," Mister said. "And none of those conversations proved to be fruitful, which is why eventually we had to file the lawsuit in March, because we realized that the date was coming very quickly. And we weren't making progress informally. So, we had to go to use the courts.
"The problem is that there's no guidance in the statute itself. If anything, the factors that the statute lays out tend to just expand the potential definition of weight loss and muscle building rather than narrow it. And without any guidance, manufacturers and marketers and retailers just simply don't know what's in that restricted class and what isn't. And because of that, it chills an awful lot of legitimate commercial speech. A lot of you know, truthful, lawful claims get wrapped up in this because people don't know what's covered and what isn't."
"With all my years in the industry, I cannot give companies good legal advice on what's in and what's not," Mister added. "And so I think that our concern is that if retailers act conservatively, as we expect that they would, [because] nobody wants to break the law, we will see legitimate products being restricted."
'A belts and suspenders approach'
Lawsuits from both CRN and NPA are moving forward in different districts in New York.
"Both lawsuits are pursuing the same goal," Mister told us. "As far as we are concerned, this was not a competitive decision between the groups. We made the decision to file in the Southern District, and that looks to have been a good decision because the judge appears to understand the situation and has introduced a very tight briefing schedule.
"In terms of both lawsuits, it’s a belts and suspenders approach. If either achieves the goal, then that’s good for the industry."
