CRN argues first amendment in appellate brief challenging New York’s age restriction for specific supplements

CRN president and CEO Steve Mister is confident in the arguments advanced in the organization’s appellate brief​ filed July 3 in the U.S. Court of Appeals for the Second Circuit. The brief challenges a New York federal district court’s denial in April of CRN’s request for a preliminary injunction for its lawsuit from March. In that lawsuit the organization argued the State law​’s broad and ambiguous definitions result in unwarranted restrictions on wide-ranging supplements and infringes on lawful commercial speech.

CRN said the brief is part of an interlocutory appeal initiated by the organization, even as the original action continues to progress at the district court level.

“[We are] hopeful that the Court of Appeals will agree that the trial court erred in not granting our motion to enjoin any enforcement of the law while this case proceeds,” Mister said. “There is significant precedent supporting our first amendment concerns…Truthful commercial speech is protected by the first amendment and CRN’s lawsuit raises significant concerns with the way the New York law targets labeling, marketing and other representations in a manner that will restrict the dissemination of truthful health information about dietary supplements. Meanwhile the underlying case continues toward a trial on the merits regardless of the outcome of this appeal.”

In an answer to the appeal, New York attorney general Letitia James denies that the State law “curbs lawful commercial speech” and "denies knowledge or information sufficient to admit or deny the remaining allegations" contained in the brief. James refers the court to the law for a complete and accurate statement of its content.

The New York State Attorney General’s office did not immediately respond to a request for comment.

Arguing the first amendment​

However, two first amendment attorneys contacted by NutraIngredients-USA did not share CRN’s confidence of success, and questioned the argument that what is written on a dietary supplement label is subject to free speech.

David Holland, a partner at Boston-based Prince Lobel law firm, said that this is not a measure of the first amendment primarily because dietary supplement labels are already highly restricted speech by federal agencies due to health and structure/function claims made by these companies. There’s only so much that can be included on a label that’s original speech and half of that is already wording created for the company by the government, such as in disclaimers.

“There is no independent idea of assertion coming across on the labeling,” Holland said.

That concept of no ‘independent idea’ was echoed by Remy Green, a partner at New York City-based Cohen and Green, who added that not all speech is created equal.

“The basic mistake [CRN] seems to be making is that they’re mixing up labeling with speech, or more importantly labeling with expressing an idea,” Green said. “It’s hard to see what idea is being expressed.”

They added: “If [New York] were passing a restriction to advertising to minors, then they’d have a first amendment issue.”

Green also said they found this case interesting because the law doesn’t ban free speech, just the sale of certain supplements to minors.

Eric Sanders, owner and president of the Sanders Firm in New York City, which focuses on civil rights law, said this is not a free speech case because the government isn’t telling supplement companies to change the label.

Sanders added that states are in their rights to ban the sale to those under 18 years of age. If state governments don’t conflict with the U.S. Constitution, then they have policing power.

“I don’t understand CRN’s argument,” he said.

As stated in the brief, “CRN and its members share the government’s concerns regarding the sale of dangerous ingredients to children and the prevalence of eating disorders. But it is not enough to have a noble goal— legislation must be drafted to accomplish that goal without depriving parties of their constitutional rights. The Act fails to do so. It runs afoul of the first amendment, and the void-for-vagueness doctrine, and the State has not demonstrated that the Act survives constitutional scrutiny to justify these constitutional infringements.”

In a statement released by CRN, Megan Olsen, senior vice president and CRN general counsel, said the case is pivotal to the industry. It is for the protection of commercial speech and the right to communicate truthful information across a broad range of lawful products.

“We are confident in the strength of our arguments and remain determined to see this law overturned,” Olsen said.