Assembly Bill A5610D prohibits retailers in New York from selling dietary supplements with ingredients that are labeled, marketed or otherwise represented as “weight loss” or “muscle building” to minors. Critics assert the law's wording is unclear, making it tricky to know exactly what it covers, but Asa Waldstein, principal of Supplement Advisory Group, offered a few critical points to consider.
"Any words on the label or in other marketing forms like blogs, product tags or hashtags should be checked to see if the products comply with the law," he said. "Terms such as ‘muscle building’ and ‘weight management support’ will definitely require age verification, and it will be interesting to see how this applies to things like hashtags or comments from company influencers—my bet is they'll be included as well.
“Also, ingredients like creatine and thermogenic herbal extracts, or any products that use before and after photos to show changes in body shape, will likely fall under this law, whether or not they directly claim to help with weight loss or muscle gain."
Venable LLP partner Claudia Lewis, who co-leads the firm’s FDA Group, said that if a company has a product that is objectively intended for weight loss or muscle-building, the law appears to apply.
"The new law does not apply to protein products, for example, a protein powder or protein drink, unless they contain ingredients ‘which would, considered alone, constitute a dietary supplement for weight loss or muscle building,'" she said. "In that instance, the protein product may be subject to the law. So companies should assess the product category, ingredients and claims."
Compliance
To help with online age verification, many of Venable LLP’s clients have turned to third parties to ensure the buyers are adults.
"They are also connecting with their various delivery vendors to implement procedures to confirm and have a record of age verification," Lewis said. "The procedures are not dissimilar to our clients that offer the online sale and delivery of alcohol."
As a result of this new age verification, Waldstein said consumers should brace for increased price tags.
"When you order these products online, delivery companies will have to verify the age of the person receiving the package," he noted. "Companies like UPS charge extra for this service, and often, these costs are passed on to customers. Also, the requirement for age verification upon delivery to places like the office can deter customers from buying these products altogether, especially since there may be a bit of a stigma attached to them."
Enforcement
Lewis stated that as with any new law, time will tell how New York intends to enforce the new law.
"Will they approach companies and provide a chance to come into compliance or will the state conduct its own investigation and then take action accordingly? In the past, New York has conducted an investigation but provided companies with an opportunity to demonstrate compliance.”
Lewis added that compliance will be relatively easy to accomplish for brick-and-mortar stores, however it becomes more complicated for e-commerce retailers.
Playing it safe
Since the law has only been in effect a few weeks, Lewis said they are still in the early stages of compliance. But so far, the biggest challenge is figuring out how to maintain records sufficient enough to demonstrate age verification for online deliveries.
"It seems that New York is serious about this and that if litigation will provide relief, it will be in the distant future," she said. "We recommend that companies create an SOP and follow it. It is much better to argue about whether the SOP was sufficient rather than the complete absence of one."
As companies work out the kinks, Lewis recommends adding language to communicate that a product is not intended for minors.
“While it is not required, should New York State come knocking on your door, it may be useful to show that you have voluntarily revised certain language on the website to align with the state’s new requirements," she said. "For example, products that fit into the weight loss or bodybuilding category could state up front that the products are intended for those 18 years old and older. Adding language to a product’s web page such as ‘Use as directed. Intended for those 18 years and older’ also is not a bad idea as a general matter."
Waldstein added that a thorough scan of online marketing is necessary.
"It's important for companies to check all their ingredients and current marketing, including blogs and YouTube videos, to determine which products need age restrictions,” he said.
“Also, many Apex Compliance customers are now using the software to spot and swap out sensitive terms like ‘weight management’ in their website content, videos and other marketing materials to avoid their products being mistakenly categorized as needing age verification. Additionally, they're using it as a review tool to flag potential trigger words and ingredients to help ensure that future content, such as blogs, influencer videos and product pages, stays clear of any ‘off-limits’ language."
Trades take on New York
"We do know that New York stands firmly behind the new requirement," Lewis said. "Two industry giants have sued New York and the attorney general's office has vigorously defended it."
Both the Council for Responsible Nutrition (CRN) and Natural Products Association (NPA) have filed separate lawsuits and preliminary injunctions in two different districts.
The Southern District of New York denied CRN’s motion for a preliminary injunction against the law on April 19. More recently, the court dismissed all claims in CRN’s lawsuit, with the exception of a claim by CRN that the age restriction law infringes on lawful commercial speech and violates the First Amendment rights of supplement marketers and retailers.
The Eastern District of New York has agreed to schedule hearings between the NPA and the New York Attorney General regarding the new law. The judge overseeing the case agreed to allow NPA’s motion for a preliminary injunction to move forward but limited it to the Dormant Commerce Clause.
