In April, New York restricted the sale of these supplements to people under the age of 18. The legislation defines these products as labeled, marketed or otherwise represented for the purpose of achieving weight loss or muscle building. It does not include protein powders, protein drinks and food marketed as containing protein unless those products have ingredients other ingredients which would, considered alone, constitute a dietary supplement for weight loss of muscle building.
The panel of judges asked CRN’s attorney, Tamar Wise of the Cozen O’Connor law firm, what harm was inflicted by the legislation. CRN had appealed the statute, arguing that the prohibition is based on the commercial speech associated with those products.
“The irreparable harm is the constitutional violation, and courts have held that a constitutional violation is a per se finding of irreparable harm,” Wise said.
The judges also questioned whether the public interest was at stake, citing a desire to protect minors from potentially dangerous products. They noted that the infringement on the First Amendment seemed relatively modest.
Wise countered with an argument invoking Central Hudson, a Supreme Court-established test to determine whether governmental regulation of commercial speech is constitutional.
“If there’s a way to get to the harm without sacrificing speech, that is where the narrow tailoring requirement comes in, and here the act is not narrowly tailored in that way…it burdens far more speech than is necessary to achieve a government interest.,” she said
Grace Zhou, assistant solicitor general in the Office of the New York State Attorney General, argued that the court should affirm the denial of a preliminary injunction against New York’s law.
The bill does not implicate the First Amendment because consumer products are widely defined and regulated according to their intended use, she said.
“Drugs are a prime example,” Zhou added. “Under the Food and Drug Administration, if a manufacturer claims that a product is intended to mitigate or to cure a disease, then it qualifies as a drug, and that triggers a whole host of regulatory requirements…it really would be a stretch to say that the FDA’s definition of a drug and the FDA’s regulatory regime surrounding drugs really is a content-based burden on manufacturers right to make specific types of claims.”
She argued that the ‘trigger’ is not speech but a product’s intended use. Speech or labeling and marketing is only in service of identifying what a product is intended to do.
The judges said it would take the matter under advisement. It is not clear when a decision will be made in the case.
“We continue to be confident in the strength of our arguments and appreciate the opportunity to raise for the court the significant First Amendment issues when a law is triggered by speech,” said Steve Mister, president and CEO of CRN.
Legal journey
In March, CRN initially filed a lawsuit in New York’s Southern District challenging the constitutionality of the State law. In April, a judge denied the organization’s motion for preliminary injunction against the law. The court dismissed all claims in CRN’s lawsuit but did deny the State of New York’s motion to dismiss CRN’s claims that the recently enacted age-restriction law in the State infringes on lawful commercial speech and violates the First Amendment rights of supplement marketers and retailers.
In July, CRN filed an appellate brief in the Second Circuit Court.
Responding the appeal, New York Attorney General Letitia James denied that the state law curbs lawful commercial speech.
That same month, the U.S. Chamber of Commerce was among four organizations that filed an amicus brief arguing the law set dangerous precedent that could impact numerous industries and that there was a need to heighten First Amendment scrutiny.
CRN’s Mister told NutraIngredients-USA last year that there is significant precedent supporting the organization’s First Amendment concerns.
“Truthful commercial speech is protected by the First Amendment and CRN’s lawsuit raises significant concerns with the way New York law targets labeling, marketing and other representations in a manner that will restrict the dissemination of truthful health information about dietary supplements,” he said.
Texas, Massachusetts, Virginia and New Hampshire recently joined the list of states that have proposed legislation restricting the sale of supplements to minors. Over the last decade, similar legislation has been defeated in California, Colorado, Illinois, Maryland, Missouri and Rhode Island.
