NY judge strikes down most of CRN’s case against new law

A federal judge has dismissed all claims but a First Amendment cause of action in a lawsuit filed by the Council for Responsible Nutrition. The lawsuit aims to overturn a New York state statute that restricts the sale of some dietary supplements.

Yesterday, Judge Andrew L. Carter Jr. of the U.S. District Court for the Southern District New York granted most of State Attorney General Letitia James’ motion to dismiss CRN’s lawsuit. (Read the opinion and order here).

The portion of CRN’s case that survives centers on an argument that the law in question, New York Assembly Bill A5610, unconstitutionally restricts First Amendment free speech rights.

CRN had earlier failed to secure an emergency injunction to prevent the law from taking effect in the first place.

Supplement sales restriction has been in effect for more than two weeks

The New York law, which went into effect on April 22, restricts the sale of weight loss or muscle building supplements to minors within the state. Sellers, including online retailers, must incorporate age-verification methods.

The statute says a court shall consider, but is not limited to, several factors in “determining whether an over-the-counter diet pill or dietary supplement is labeled, marketed, or otherwise represented for the purpose of achieving weight loss or muscle building.” Critics of the law argue it’s vague and could unduly restrict access to a broad range of supplements, not just muscle-building or weight loss products.

Related:CRN’s lawyers have their work cut out in NY litigation—to put it mildly

The reason behind the law involves an assertion on the part of academics associated with the Strategic Training Initiative for the Prevention of Eating Disorders (STRIPED) that these kinds of supplements — and the messages used to market them — exacerbate eating disorders among young consumers. STRIPED is based at the Harvard T.H. Chan School of Public Health and Boston Children’s Hospital.

CRN has stridently maintained there is no credible scientific evidence to support a connection between eating disorders and use of supplements.

First Amendment claim will move forward

In his May 13 opinion and order, Carter ruled that CRN has plausibly alleged a First Amendment claim. However, he also determined the trade group has failed to plausibly allege the New York statute is void for vagueness or represents an excessive use of police powers. The judge also ruled that CRN’s preemption challenge fails.

“When accepting all of the factual allegations in the amended complaint as true and drawing all reasonable inferences in plaintiff’s favor, the Court finds that CRN has met its minimum burden to suggest a First Amendment injury,” Carter wrote. “While the Court has expressed serious doubt about CRN’s likelihood of success on the merits — namely that even if the statute implicates the First Amendment, it likely survives intermediate scrutiny— we cannot conclude at this stage that plaintiff has failed to plead factual allegations to sufficiently ‘raise a right to relief above the speculative level.’”

Carter referred the case to Magistrate Judge Gary Gorenstein for discovery on CRN’s First Amendment claim.

“Even as we prepare to appeal the trial judge’s earlier decision on our preliminary injunction, we are encouraged by his ruling yesterday on our First Amendment argument,” Steve Mister, president and CEO of CRN, told SupplySide Supplement Journal in an email. “The judge denied the state of New York’s motion to dismiss our allegations that the age restriction law infringes on lawful commercial speech and violates the constitutional rights of our members to make truthful and lawful claims for their products.

“In holding that the restrictions ‘may very well regulate protected speech,’ this decision allows us to move forward on the merits of the case,” Mister added. “The judge has already recognized that CRN has standing to pursue these claims on behalf of our members. Yesterday’s ruling was another milestone toward invalidating these illegitimate restrictions. We are confident in the strength of our legal arguments.”

The New York attorney general did not immediately respond to a request for comment before publication time.

A similar lawsuit to overturn the law filed by the Natural Products Association is pending in the U.S. District Court for the Eastern District of New York.