Steve Mister on CRN's ongoing lawsuit against New York State

Nutritional Outlook (NO):CRN’s complaint against New York’s law banning the sale of weight management and muscle building products continues, but it’s going to be some time until that is heard in court. In the meantime, CRN is also appealing the court’s decision to deny a motion for preliminary injunction. What are some key points that CRN is making in its appeal; what do you believe the court got wrong in its initial decision?

Steve MIster, president and CEO of the Council for Responsible Nutrition (SM):

So, we've appealed the case up to the SecondCircuit and the specific aspect of the lawsuit that we have appealed was the trial court’s decision not to give us a preliminary injunction that would have halted any enforcement of the law officially during the pendency of this lawsuit.

Where [the court] erred was that it failed to recognize that the New York law is, at its root, a violation of the 1st amendment and the court seemed to be focused more on the fact that a sales restriction is not necessarily an infringement on free speech.But what the court missed was that it's the trigger for when the sales restriction is put in place and that is based solely on the kinds of claims that are being made for the dietary supplement. So, if you're saying something about weight loss or muscle management or muscle building in your advertising or on your label, that is the trigger for the age restriction. And that's a violation of the 1st amendment.

NO: Motions for preliminary injunction are judged on a different standard of proof than a motion to dismiss. In the case of the first amendment argument, the court has “serious doubt” on CRN’s ability to win on the merits of this argument, but it remains the only argument the court has deemed meets the minimum burden to suggest injury. Out of all the arguments made by CRN, was it a surprise that the first amendment claim survived?

SM:We weren't surprised that the First Amendment claim was one of the things that the court did seize on. I've always thought that was one of our strongest arguments. I think some of the other arguments that we made may be resurrected when the 1st Amendment case is decided because we also argue that the law is void for vagueness. Because it's so vague, it's hard for companies to know which products are in and which ones are not. We argue that it's an excessive use of the state's police power.

But all of that hinges on if there is a First Amendment violation, because if there is no First Amendment violation, then the standard for the law is there a rational basis for the legislature to do something, but if they violate the 1st amendment, now those legislative acts are subject to heightened scrutiny because they're infringing on a constitutional right. So, I think if we win on the 1st amendment argument, some of these other things will be revisited because now they will be looked at under a tougher scrutiny for the state.

NO: To your knowledge, has New York began enforcing the law and issuing fines to uncompliant retailers? Has the law’s passage had the deleterious effect on stakeholders that was anticipated?

SM: As far as we know, there has been no enforcement action since the law went into effect in April. We have a feeling that our lawsuit has something to do with that because the state of New York may be reluctant to bring an enforcement action that could then be used as part of our lawsuit. Rightnow, we are having to challenge the law on its face, not as applied to any particular retailer, if they bring enforcement actions, then we'llactually have, you know, concrete cases that we can hold up, so no, as far as we know, no.

[We do have] a number of accounts of retailers who have either put products under restriction or in some cases just decided to stop selling them at all. Some of the online retailers have decided that they will not sell any of these products that are affected to anyone in the state of New York, so they're just not going to deal with the age verification requirement. And that means that consumers in New York are losing out because they're not getting access to these products if they can't order them online, they can't find them in store.