Chamber of Commerce supports CRN in challenge to NY law

A New York statute that restricts minors’ access to certain dietary supplement products affects the First Amendment contrary to a ruling in April by a federal district court, the U.S. Chamber of Commerce and three additional groups argued in a “friend of the court” brief filed Wednesday.

The groups urged the U.S. Court of Appeals for the Second Circuit to reverse the district court’s ruling, which denied the Council for Responsible Nutrition’s request for a preliminary injunction against New York Assembly Bill A5610. U.S. District Judge Andrew L. Carter Jr. determined the state law regulates conduct rather than speech.

The chamber filed an 18-page amicus brief in support of CRN, along with the Consumer Healthcare Products Association, FMI-The Food Industry Association and the National Association of Chain Drug Stores Inc.

The New York statute “targets and burdens speech protected by the First Amendment,” despite the government’s argument that it merely regulates the conduct of selling certain supplements for weight loss or muscle building, according to the amicus brief.

“It does this by using speech — the labeling, advertisements, and other statements through which manufacturers and retailers market their products — to define the products to which the statute’s restrictions and requirements apply. Even if those restrictions and requirements are ‘directed at conduct,’ using speech as the ‘trigger’ for imposing them implicates the First Amendment,” the organizations stated, citing decisions in 2010 and 2022 from the U.S. Supreme Court and Second Circuit.

Related:CRN appeals district court’s denial of preliminary injunction against NY law

The district court’s “erroneous holding, if allowed to stand, would endanger fundamental First Amendment freedoms by empowering governments to use supposed content restrictions ‘as a smokescreen for regulating speech,’” the amicus brief added.

In April, Judge Carter denied CRN’s request for a preliminary injunction, finding the trade group had not shown it was likely to prevail on the merits of its First Amendment claim that New York Assembly Bill A5610 unconstitutionally restricts protected commercial speech.

CRN recently appealed the ruling.

The office of New York Attorney General Letitia James, which is defending the dietary supplement law, has not responded to previous requests for comment from Natural Products Insider regarding the litigation. As of July 11, James’ office had not yet filed a response to CRN’s appellate brief.