Council for Responsible Nutrition v. James

Background

New York enacted N.Y. General Business Law § 391-oo, effective April 22, 2024. The statute prohibits selling, offering to sell, or giving away dietary supplements for weight loss or muscle building to anyone under 18. It defines covered products partly by their ingredients and partly by how they are labeled, marketed, displayed, or grouped. Protein powders, protein drinks, and foods marketed as containing protein are generally exempt unless they contain another ingredient that would independently qualify as a covered supplement. The Attorney General may seek court-ordered injunctions and civil penalties of up to $500 per violation.

The Council for Responsible Nutrition (CRN), a nonprofit trade organization representing dietary-supplement manufacturers and distributors, sued Letitia James in her official capacity as New York Attorney General. CRN sought declaratory and injunctive relief, asserting that the statute violates the First Amendment, exceeds the State’s police powers, is preempted by federal law, and is facially unconstitutionally vague. CRN also requested an emergency preliminary injunction to prevent enforcement.

Standing

The court held that CRN had associational standing, meaning it could sue based on injuries to at least one member. The court relied particularly on allegations from CRN member XYMOGEN, which manufactures dietary supplements and identified at least six products affected by the statute. The court found that potential inventory restrictions, label changes, age-verification requirements, and compliance costs were sufficiently concrete injuries. It also found a credible threat of enforcement after the statute took effect.

First Amendment claim

The court rejected CRN’s argument that the statute unlawfully restricts protected commercial speech. It characterized the law’s central requirement as a conduct regulation: sellers must verify customers’ ages before selling certain products to minors. The statute does not prohibit sellers from making particular statements about their products or require them to change their labels. The court therefore concluded that the statute does not implicate the First Amendment, or at most places an incidental burden on commercial speech.

The court added that the statute would likely survive intermediate scrutiny even if the First Amendment applied. It found that New York had a substantial interest in protecting minors from eating disorders and health risks associated with unsupervised use of these products. The court also found that the legislative record sufficiently supported a connection between the restriction and those harms, and that the law was not more extensive than necessary because it limits access rather than banning covered products and leaves sellers able to convey product information.

Other constitutional and federal-law claims

The court concluded that the statute was not an excessive exercise of New York’s police powers. Applying rational-basis review, the court found that restricting minors’ direct purchase of certain supplements was rationally related to reducing unsupervised use.

The court also rejected CRN’s federal-preemption claim. It reasoned that the statute does not require changes to product labels; it imposes an age restriction. Because the court found no conflicting labeling requirement, it concluded that the statute was not preempted by federal law.

The court rejected the facial vagueness challenge as well. It found that the statute gives people of ordinary intelligence reasonable notice that it prohibits selling covered dietary supplements to minors and that the statute is not vague in all its applications. XYMOGEN’s ability to identify affected products and decide whether to revise marketing or impose age restrictions supported that conclusion.

Irreparable harm and public interest

The court found that CRN had not established irreparable harm, which is harm that cannot adequately be remedied later. Because the court concluded that the statute does not violate the First Amendment, it rejected CRN’s claimed speech-related irreparable injury. It also found that CRN’s approximately five-month delay in seeking emergency relief weakened its claim that the economic harm was immediate and irreparable.

The court further held that the public interest and balance of harms favored enforcement. It emphasized the State’s interest in protecting minors from physical and mental-health harms associated with weight-loss and muscle-building supplements. The court found that CRN’s financial concerns, possible civil penalties, and potential lost sales were outweighed by that public-health interest.

Disposition

Judge Andrew L. Carter, Jr. denied CRN’s emergency request for a preliminary injunction. The Clerk was directed to close the motion at ECF No. 14. The opinion did not state that the underlying case was dismissed or finally resolved.