CRN continues fight for preliminary injunction of NY law banning the sale of weight management and muscle building supplements to minors

Photo © iStockphoto.com/KLH49

On July 3, 2024, the Council for Responsible Nutrition (CRN; Washington, D.C.) filed an appellate brief to the U.S. Court of Appeals for the Second Circuit. The brief challenges the decision by the U.S. District Court for the Southern District of New York to deny CRN’s motion for a preliminary injunction that would halt the enforcement of a recently passed ban on the sale of weight management and muscle building supplements to minors. A preliminary injunction would stop the enforcement of the ban pending the outcome of CRN’s complaint against the legislation which seeks permanent injunctive relief.

The motion was denied in April because the judge determined that CRN’s motion failed to demonstrate that the law created irreparable harm to its members, and was largely unconvinced by the association’s arguments. Among the claims made by CRN the judge deemed were unlikely to prevail was the violation if First Amendment rights. The judge failed to see a First Amendment violation because the ban on the sale of these supplements to minors constitutes conduct, not speech. In its appeal, CRN wrote:

“The Act only regulates products based on the speech associated with them. That is, it does not regulate specific ‘dangerous’ ingredients; instead, the New York Attorney General (‘NYAG’ or ‘State’) will first have to look at the speech made about a product (potentially by any number of parties, e.g., a manufacturer, a retailer, or even an influencer) to see if the product makes structure/function claims about weight loss or muscle building. And only after analyzing that content (and determining that the speech touts either of those properties), can the NYAG (or a court) determine whether the product is covered by the Act, and whether the Act proscribes the conduct in question (the sale of the product).”

In a brief replying to CRN’s appeal, the office of New York Attorney General Leticia James wrote:

“The challenged law bars the sale of weight-loss and muscle-building supplements to minors but does not restrict what manufacturers and retailers may say about these products. The law thus regulates nonexpressive economic conduct and does not implicate the First Amendment. Although the law looks to manufacturers’ and retailers’ representations about the purposes of products to determine whether a given supplement is subject to the sale restriction, this sorting function does not target the underlying speech but rather identifies the products falling within the scope of the restriction.”

In turn, CRN has recently filed a reply brief to the NYAG’s challenge, stating:

“That the Act does not directly tell CRN’s members what they can and cannot say is not the end of the inquiry. Where, as here, the regulation is exclusively triggered by specific speech, the First Amendment is also triggered. And the NYAG concedes—in the first page of its Opposition—that the Act’s age verification obligations are triggered by the speech associated with a product. The Act itself is explicitly designed to “focus[] on the way products are marketed, regardless of their ingredients[,]” as it targets “drugs based on their

marketing.” JA94 (emphasis added). The Act would regulate no product absent speech. Under controlling caselaw that the NYAG ignores, the Act is a speech regulation that must pass constitutional scrutiny, and is the type of regulation that inherently causes irreparable harm warranting injunctive relief.”

While CRN attempts to appeal its motion for a preliminary injunction, its complaint is still ongoing with only the First Amendment argument surviving from the original filing. “By focusing on marketing claims rather than the actual ingredients in these products, the law violates free speech rights and could make it harder for all consumers, including adults, to purchase safe and beneficial supplements,” said CRN’s president and CEO, Steve Mister, in a statement announcing the reply brief

"Our reply brief demonstrates how the New York Attorney General’s arguments to dodge the First Amendment reckoning just don’t hold up. The law is too broad, lacks evidence to support its claims, and could lead to fewer choices, and less truthful information getting to consumers without actually protecting anyone,” added Meg Olson, senior vice president and general counsel for CRN.