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WASHINGTON — The Council for Responsible Nutrition (CRN) has filed its appellate brief in the U.S. Court of Appeals for the Second Circuit challenging a New York federal district court’s denial of CRN’s request for a preliminary injunction in its lawsuit against the recent New York State law that imposes age restrictions on the sale of certain dietary supplements.
The action represents a significant step in CRN’s ongoing efforts to protect consumer access to safe and beneficial health products and to uphold the rights of its members to truthfully market dietary supplements under the federal requirements, the association said on Monday. The lawsuit, filed on March 13, 2024, seeks to enjoin the enforcement of the New York law, which CRN argues infringes on constitutional rights to provide and receive truthful health information by unnecessarily restricting consumer access to beneficial dietary supplements. It does so without achieving any demonstrated health benefits or public safety ends. Despite a federal district court’s denial of a preliminary injunction in April 2024, CRN remains committed to its legal challenge.
The brief, filed July 3rd with the U.S. Court of Appeals for the Second Circuit, is part of an interlocutory appeal initiated by CRN, even as the original action continues to progress at the district court level, to address critical issues with the district court’s interpretation of the New York law’s constitutionality, particularly around the First Amendment and the law’s vague language.
CRN’s brief outlines several concerns with the lower court’s preliminary injunction decision as the basis for the interlocutory appeal. With regard to First Amendment issues, CRN contends that the district court erred in its determination whether the law infringes on First Amendment rights and if that infringement is constitutional.
Among other critical issues, the judge incorrectly downplayed CRN’s First Amendment concerns on the grounds that the law regulates conduct, not speech. However, this analysis missed a critical step in analyzing whether the law infringes on the First Amendment – namely, as another federal appellate court described, “whether enforcement authorities must examine the content of the message that is conveyed to know whether the law has been violated.” Even if the restriction itself (an age limit on sales) is “conduct,” it can implicate the First Amendment if the trigger (a weight loss or muscle building claim) is a content-based limitation on “speech.”
With further regard to First Amendment issues, CRN’s brief raises concerns that the district court did not meaningfully address CRN’s arguments related to how the law burdens speech and, thus, must be analyzed for constitutionality. CRN also contends that the district court erred in its analysis of whether the law was unconstitutionally vague, both in the standard it used to assess whether the law had to be vague “in all applications” for CRN to be able to bring a challenge and the court’s conclusory statement that the “plain language of the Statute is uncompromisingly clear.”
CRN has argued the opposite and provided numerous examples in its briefs and through CRN member declarations that the law’s unconstitutional vagueness has left retailers and manufacturers uncertain about which products are covered and how to comply. This lack of clarity forces businesses to either chill truthful legal speech and restrict access to a broad range of products unnecessarily or risk penalties if they misanalyse the breadth of the restrictions.
Finally, CRN’s appellate brief addresses concerns with the district court’s decision regarding whether the law is preempted by the Federal Food, Drug, and Cosmetic Act (FDCA), which already provides a comprehensive regulatory framework for dietary supplements, ensuring their safety and accurate labeling.
Steve Mister, President and CEO of CRN, stated, “Our decision to pursue this appeal underscores our commitment to protecting the rights of our members and the consumers they serve. The New York law is a misguided approach that will not address the complex issue of eating disorders but will instead hinder access to truthful information and products that support health and wellness.”
Megan Olsen, Senior Vice President and General Counsel of CRN, added, “This case is pivotal not only for our industry but for the protection of commercial speech and the right to communicate truthful information across a broad range of lawful products. We are confident in the strength of our arguments and remain determined to see this law overturned.”
CRN has a long history of advocating for reasonable and science-based regulation of dietary supplements. The association’s efforts in New York date back several years, having previously opposed a similar bill that was ultimately vetoed. CRN’s ongoing litigation is the only active case brought by a trade association against the New York age restriction law, highlighting its unique position in the fight for industry rights and consumer access.
