U.S. Chamber of Commerce backs CRN suit against NY age-restriction law

The brief, which was filed in the United States Court of Appeals for the Second Circuit, supports the Council for Responsible Nutrition’s (CRN) ongoing legal action challenging New York’s General Business Law § 391-oo​.

Joining the Chamber on the brief were the Consumer Healthcare Products Association (CHPA), FMI – The Food Industry Association and the National Association of Chain Drug Stores (NACDS) that argue the law’s use of speech as a trigger for legal restrictions is a “dangerous precedent that could affect numerous industries” and that this underscores the need for “heightened first amendment scrutiny to statutes that impose burdens on speech,” according to a CRN statement.

"The law’s overly vague definitions and requirements targeting protected commercial speech should be evaluated through the lens of the First Amendment and not simply conduct,” said David Spangler, CHPA senior vice president of Legal, Policy & Government Affairs. “CHPA will continue to advocate for well-balanced policies that allow industry to continue giving consumers access to safe, beneficial and well-regulated dietary supplements that millions of Americans rely on every day to support their overall health and wellness."

In March, CRN filed a lawsuit in New York’s Southern District challenging the constitutionality of the State law. In April, a judge in the Southern District of New York denied the organization’s motion for a preliminary injunction against the law. Earlier this month, CRN filed an appellate brief​ in the Second Circuit Court.

FMI and the Chamber could not be reached for comment prior to publication. A spokesperson for NACDS referred comment to CRN.

A vague law?​

The New York law prohibits the sale of dietary supplements to minors defined as those “labeled, marketed or otherwise represented for the purpose of achieving weight loss or muscle building.”

Critics argue this language is vague because a range of dietary supplements could be interpreted in this class. For example, if a supplement is marketed to sustain muscle or reduce muscle atrophy from aging, is that a muscle building product? Many essential nutrients aid the body with metabolism, but does use of the word 'metabolism' signify weight loss?  If an ingredient like green tea or vitamin B12 is promoted by one marketer for weight management, is that ingredient implicated for all brands and products in which it is included? Do these interpretations of the law lead to consumers being less able to get truthful, complete information about a supplement? 

“Chill speech is a very, very significant first amendment concept that courts need to take into consideration," said Megan Olsen, senior vice president and general counsel at CRN. "We're stopping the free flow of information because companies have to consider these burdens now when they're making truthful claims.” 

Miriam Guggenheim, co-chair of the Food, Drug and Device Practice Group at Covington and Burling, agreed.

“It chills the speech of the commercial actors and what they can say of the product,” she said. “The way the law is being applied captures a very broad range of claims.”

She added that it is important to see laws grounded in science when they are purporting to be for health and safety.

Although her sentiments are echoed by others in the dietary supplement industry, the fact that the law does not cite a specific weight loss or muscle building supplement may rule out arguing the scientific merit of a particular product.

Steve Mister, president and CEO at CRN, reiterated why the focus is on the First Amendment.

“The Supreme Court has been very clear over the years that while commercial speech does not have quite the same level of protection that political speech has, it is still free speech, and it is still entitled to protection under the First Amendment, and that States cannot restrict commercial speech without some sort of very compelling reason,” he said.

NutraIngredients-USA spoke with David Holland​, a partner at Boston-based Prince Lobel, who said that supplement labels are highly restricted speech by federal agencies because of the health and structure/function claims. There is only so much that can be included on a label that is original speech, he said. 

However, Mister added that the court has been clear that labeling, as well as advertising and other forms of marketing, are all entitled to First Amendment protection as commercial speech—whether on label or in advertising.

“We've already heard concerns that retailers won't carry certain products because of the extra burden they have to carry,” he said.

Companies now must factor the expense of checking minors' IDs​, which poses an additional challenge for home delivery of supplements in New York.

“There are significant costs associated now,” Mister said.  

According to Scott Bass, founder of the Global Life Sciences and Food and Drug Law Practices at Sidley Austin, the legal challenge presented by CRN, CHPA and others is more nuanced, and it is important to examine the entire statute.

“I think the court should not avoid the First Amendment analysis in the case,” he said. “It’s right for the court to dig into the First Amendment here. When you look at how the New York law works, what is the practical effect on communications for a company?”

Part of the significance of these legal filings is that CRN and others are fighting what could become a patchwork of state laws based on New York’s legislation.

What is needed is uniform regulation of supplements at the federal level, Bass added.