NPA litigation in NY stayed pending outcome on motions in CRN lawsuit

A New York federal judge on Wednesday paused court proceedings in a lawsuit filed by the Natural Products Association (NPA) pending a decision by a judge in a separate district in a similar complaint brought by the Council for Responsible Nutrition (CRN).

In U.S. District Court, both NPA and CRN are challenging a New York state law that restricts minors’ access to certain dietary supplement products and is set to take effect on April 22: New York Assembly Bill A5610. The legal claims in the lawsuits are not identical but both aim to overturn a statute that NPA’s complaint describes as “incredibly vague and ambiguous.”

NPA’s lawsuit was filed first in December in the Eastern District of New York in Islip on Long Island, then CRN filed a complaint in March in the Southern District of New York in Manhattan.

Federal Judge Andrew Carter may rule in the coming days on CRN’s motion for a preliminary injunction and a separate motion to dismiss filed by the state attorney general.

Due to local court requirements in the Eastern District of New York, NPA and the state AG haven’t had the chance yet to brief similar motions before federal Judge Joan Azrac.

However, NPA previously said in a letter to the judge it intended to request a preliminary injunction while the state AG identified its plans to request dismissal of the case. In a one-page document filed on Wednesday, April 17, in the Eastern District of New York, a box was checked stating that “case/motion briefing is stayed pending Judge Carter’s decision.”

CRN has alleged the New York statute is “void for vagueness” under the First and 14th amendments of the U.S. Constitution, infringes on constitutionally protected speech under the First Amendment and exceeds the state’s police powers. CRN also claimed the law violates the U.S. Constitution’s supremacy clause, which invalidates state laws contrary to federal statutes. NPA has alleged the law violates the due process clause of the 14th Amendment, the dormant commerce clause and supremacy clause in the U.S. Constitution.

Dan Fabricant, Ph.D., president and CEO of NPA, said in an interview that it was unnecessary for CRN to file a lawsuit challenging the New York statute in a separate federal district, “and in the long term will only lead to complications that the industry doesn’t need.” 

He mentioned NPA had requested expedited discovery to determine from the state health department what dietary supplement products are covered and what products are excluded from the statute. CRN’s case, he added, will delay that effort.

“The industry needs clarity on this” statute, Fabricant said. “Having two different decisions from two different courts will not provide that end point.”

In a pre-motion conference yesterday in the NPA litigation, a lawyer representing the New York attorney general advised the court of the CRN case in the Southern District of New York, where there are pending motions, according to Kevin Bell, counsel to NPA.

Bell said NPA raised different claims in its case than CRN, and NPA’s arguments were not precisely the same as the ones in the CRN lawsuit, even where the claims overlapped. But Azrac is awaiting rulings in the Southern District of New York and a determination on whether those rulings will impact NPA’s case and its separate request for a preliminary injunction, Bell added.

“My primary concern as a litigator is having two lawsuits filed four months apart pending in two different jurisdictions inherently creates unnecessary risk,” he told Natural Products Insider in an email. “It permits the opportunity for inconsistent rulings by the courts. It also doubles the amount of opposition coming from the NYAG's offices.”

He added the judge in the CRN case is not privy to the additional claims raised by NPA or all the allegations in the overlapping claims raised by NPA.

“There is enough uncertainty associated with litigation. Strategically, you should want to present all of your claims and arguments in front of one judge to increase your likelihood of success,” Bell added.

CRN declined to comment for this article, and the New York attorney general has not responded to previous requests for comment.