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WASHINGTON — The Council for Responsible Nutrition (CRN) on Thursday thanked the National Association of Chain Drug Stores (NACDS), The Food Industry Association (FMI) and the Consumer Healthcare Products Association (CHPA) for joining the U.S. Chamber of Commerce in supporting its challenge to a New York state law that restricts the sale of certain dietary supplements based on their labeling and marketing.
The four organizations filed an amicus (“friend of the court”) brief in the United States Court of Appeals for the Second Circuit, supporting CRN’s challenge against New York’s General Business Law § 391-oo.
CRN’s lawsuit argues that the statute unlawfully targets protected commercial speech by using marketing and labeling as the “triggers” to determine which products are subject to sales restrictions. CRN asserts that the law infringes upon marketers’ First Amendment by burdening protected speech and failing to meet the heightened scrutiny standards that infringement of a constitutional right requires. Although the district court acknowledged a potential First Amendment violation, it refused to grant a preliminary injunction that would have halted enforcement of the law while this litigation is pending.
In the amicus brief, the U.S. Chamber of Commerce highlights the critical nature of this case for the broader business community. The brief emphasizes that the statute’s use of speech as a trigger for legal restrictions is a dangerous precedent that could affect numerous industries. Its detailed arguments align with CRN’s position, underscoring the necessity of applying heightened First Amendment scrutiny to statutes that impose burdens on speech.
“We are grateful for the robust support in this critical legal challenge, and the backing of the U.S. Chamber, CHPA, FMI and NACDS,” said Steve Mister, President and CEO of CRN. “The amicus brief articulates the fundamental issues at stake, not just for the dietary supplements industry, but for all businesses that rely on their right to communicate freely about their products.”
The amicus brief outlines several key points, including:
- The statute uses labeling and marketing—forms of protected speech—to determine its applicability, thereby burdening speech without adequate justification.
- The government’s defense and the district court’s determination that the statute merely regulates conduct misreads that the key to whether a product is subject to the law depends on speech, and “reflects the distressing ease with which governments may seek ‘to control speech by recharacterizing it as conduct.’”
- The district court’s decision failed to recognize the statute’s implications for First Amendment rights, warranting a second review of the law and proper application of First Amendment scrutiny.
- The statute’s vague definitions and requirements place undue burdens on businesses, leading to potential punitive measures for inadvertent non-compliance.
CRN says it remains dedicated to advocating for the dietary supplement industry and protecting the rights of its members. This latest development marks a significant step in the ongoing fight to ensure that regulatory measures respect and uphold constitutional freedoms.
