Industry fight against ban on dietary supplements heads to appeals courtIndustry fight against ban on dietary supplements heads to appeals court

The Council for Responsible Nutrition (CRN) will argue on Friday, Jan. 24, before the U.S. Court of Appeals for the Second Circuit. CRN contends a New York law restricting the sale of muscle-building and weight-loss supplements to minors violates First Amendment rights.

Josh Long, Associate editorial director, SupplySide Supplement Journal

January 23, 2025

3 Min Read

by Josh Long

[Editor's note: A follow-up story reporting on the oral arguments was published here on Jan. 27].

Tomorrow, an industry trade group will seek to convince a panel of appellate judges that a U.S. District Court in 2024 should have granted a request for a preliminary injunction against a New York law that prohibits the sale to minors of dietary supplements marketed for muscle building or weight loss.

Oral arguments are scheduled to begin at 10 a.m. EST in the U.S. Court of Appeals for the Second Circuit — pitting one of the industry’s most prominent trade associations, the Council for Responsible Nutrition (CRN), against the office of New York Attorney General Letitia James. Circuit judges Denny Chin, Myrna Pérez and Alison Nathan are scheduled to hear oral arguments.

On April 19, 2024, Federal Judge Andrew Carter in the Southern District of New York denied CRN’s request for a preliminary injunction, or what he characterized as “extraordinary relief,” against New York Assembly Bill A5610. CRN in July filed an appellate brief in the Second Circuit, challenging Carter’s denial of its request.

On Jan. 24, attorneys representing CRN and James’ office will argue the case before the New York-based appeals court. Tamar Wise from the law firm Cozen O’Connor will appear on CRN’s behalf. According to her bio, Wise’s experience includes helping to secure a First Amendment victory before the U.S. Supreme Court.

Related:New York law targeting dietary supplements violates free speech, CRN lawyer argues

Last month, I discussed the significance of the CRN lawsuit with the trade association’s senior vice president and general counsel, Megan Olsen. Among other arguments, CRN contends the law infringes on commercial speech in violation of the First Amendment.

The law “affects our industry broadly, not just companies that sell these so-called weight-loss and muscle-building products,” Olsen told me in an interview. “What happens in this case is going to have an effect on how companies are able to freely talk about their product benefits in the future.”

As our publication (SupplySide Supplement Journal) has extensively reported, a growing number of state legislatures in recent years have moved to restrict minors’ access to certain dietary supplement products, specifically those marketed for weight loss and muscle building. New York, however, is the only state with such a law on the books – for now.

Such legislative proposals represent a slippery slope for the dietary supplement industry, according to Olsen.

“Who says the states are going to stop just with these so-called weight-loss and muscle-building products?” she suggested, referencing legislation in California that she said targeted cosmetics and anti-aging claims.

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

Olsen told me that CRN’s members have been working to comply with the New York law, including trying to ascertain which products are subject to the restrictions. The trade association maintains that hasn’t been an easy undertaking.

“There’s a lot of gray area and vagueness in the law, which we have pointed out numerous times throughout our arguments in this litigation, and that is having a chilling effect on how these products are sold and what companies can say about them,” Olsen said.

Go here to watch the oral arguments live tomorrow at 10 a.m. EST.

About the Author

Josh Long

Associate editorial director, SupplySide Supplement Journal , Informa Markets Health and Nutrition

Josh Long directs the online news, feature and op-ed coverage at SupplySide Supplement Journal (formerly known as Natural Products Insider), which targets the health and wellness industry. He has been reporting on developments in the dietary supplement industry for over a decade, with a focus on regulatory issues, including at the Food and Drug Administration.

He has moderated and/or presented at industry trade shows, including SupplySide East, SupplySide West, Natural Products Expo West, NBJ Summit and the annual Dietary Supplement Regulatory Summit.

Connect with Josh on LinkedIn and ping him with story ideas at [email protected]

Education and previous experience

Josh majored in journalism and graduated from Arizona State University the same year "Jake the Snake" Plummer led the Sun Devils to the Rose Bowl against the Ohio State Buckeyes. He also holds a J.D. from the University of Wyoming College of Law, was admitted in 2008 to practice law in the state of Colorado and spent a year clerking for a state district court judge.

Over more than a quarter century, he’s written on various topics for newspapers and business-to-business publications – from the Yavapai in Arizona and a controversial plan for a nuclear-waste incinerator in Idaho to nuanced issues, including FDA enforcement of the Dietary Supplement Health and Education Act of 1994 (DSHEA).

Since the late 1990s, his articles have been published in a variety of media, including but not limited to, the Cape Cod Times (in Massachusetts), Sedona Red Rock News (in Arizona), Denver Post (in Colorado), Casper Star-Tribune (in Wyoming), now-defunct Jackson Hole Guide (in Wyoming), Colorado Lawyer (published by the Colorado Bar Association) and Nutrition Business Journal.

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