Judge Azrack held a hearing on April 23 following unsuccessful efforts by the Council for Responsible Nutrition (CRN) in the Southern District of New York (SDNY). Following that SDNY decision, Judge Azrack allowed NPA’s motion for a preliminary injunction to move forward, but limited it to the Dormant Commerce Clause.
The judge has now outlined the briefing schedule for both the NPA’s preliminary motion to dismiss and the New York Attorney General’s (NYAG) motion to dismiss NPA’s lawsuit (filed in December).
For NPA, the key dates for the preliminary motion to dismiss are May 6 (serving of the paperwork for the Dormant Commerce Clause-focused motion), May 13 (NYAG’s response) and May 17 (NPA’s response and filing the final motion).
For the NYAG’s office, the key dates are May 21 (serving of the paperwork for the motion to dismiss), June 4 (NPA’s response) and June 14 (the NYAG’s response and filing the final motion).
Commenting on the new schedule, Daniel Fabricant, PhD, NPA president and CEO, told us: “It is very good to have clarity and a timeline. We’re still moving forward.”
The details
All of this is focused on a law that went into effect on April 22 (A.5610/S.5823) in the State of New York that restricts access of minors to weight loss or muscle building dietary supplements.
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 bill was signed into law at the end of October, with NPA filing suit against New York in December.
