In his 25-page judgement, US District Judge Andrew Carter Jr. stated, “This Court denies this extraordinary relief. Plaintiff [CRN] has not demonstrated a likelihood of success on a constitutional injury that would excuse this delay. Moreover, granting a preliminary injunction is not in the public interest.”
The Judge did acknowledge that CRN had established standing in the context of a motion for a preliminary injunction.
"The announcement that we have standing is significant,” said CRN President and CEO Steve Mister. “As for the preliminary injunction, we knew that asking for such extraordinary relief was a longshot, although we respectfully disagree with the court. We will continue to pursue all available legal avenues to challenge this law and continue to believe it unfairly restricts consumer access to legitimate, beneficial health products and infringes upon the rights of businesses to engage in lawful commerce."
However, Judge Carter disagreed with the association’s claims of “immediate, irreparable, and impending injury”, noting that it took five months for CRN to file for preliminary relief after the law was enacted in October 2023.
CRN announced the filing of its lawsuit against New York in March.
What’s next?
The legislation (A.5610/S.5823) will go into effect on Monday, April 22.
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 Cambodia and green coffee bean extract, according to the text of the bill.
The law also states that a dietary supplement may be subject to the age-based sales restriction through the actions of the retailer by “placing signs, categorizing or tagging the supplement with statements”, suggesting that the supplement will impact weight, fat, appetite, metabolism, muscle or strength.
The vagueness of the law’s language is posing a significant challenge to industry. New York has not clarified what is and what is not included, meaning that the law will come into effect with industry still unsure about the details.
However, Judge Carter wrote that the law is not unconstitutionally vague because one CRN member could identify a number of products that would be impacted.
Natural Products Association
The decision in the Southern District (SDNY) could have implications for efforts by the Natural Products Association (NPA) in the Eastern District of New York (EDNY). NPA filed suit against New York in December and recently announced its own efforts for a preliminary injunction.
On a phone call with NutraIngredients-USA, Kevin Bell, partner at Arnall Golden Gregory and Counsel for NPA, explained that the judge handling the association's case, Judge Joan Azrack, held a pre-motion conference earlier this week.
“While the judge appeared ready to set a briefing schedule for NPA’s motion for a preliminary injunction, a request was made by the NYAG attorney in our case to hold off setting a formal briefing schedule until rulings on the pending motions in the SDNY case were decided,” Bell explained.
“The judge decided to wait to see if rulings would occur in the SDNY soon and determine if those rulings would have any impact on NPA’s case and its separate request for a preliminary injunction on different claims.”
On hearing the decision in the SDNY case, Bell said that NPA would “probably file a notice Monday morning” and noted that Judge Azrack will quickly set up another conference in NPA’s case and determine next steps. “She advised that any preliminary injunction briefing that proceeded would be expedited,” he said.
“One of the primary concerns we had about the SDNY case, which was filed in a different jurisdiction in the same state, was that it might cause a situation like this where it potentially limits the amount of legal attacks industry can make to strike down this law and any related enforcement in New York.
“This is the unfortunate part of fighting a war on two fronts,” said Bell.
