The U.S. Court of Appeals for the Second Circuit declined to grant a preliminary injunction that would prevent New York state from enforcing a ban on the sale of weight loss/muscle building supplements to minors, until a lawsuit filed by the Council for Responsible Nutrition (CRN), which challenges the constitutionality of the law, is settled.

On April 4, 2024, the state of New York enacted the ban on the sale of dietary supplements “labeled, marketed, or otherwise represented” for weight loss or muscle building to anyone under the age of 18. Around the time of its initial passing, U.S. District Court Judge Andrew L. Carter Jr. denied CRN’s request for a preliminary injunction against the law, finding that CRN failed to show likelihood of success on the claim that the law would violate protected commercial speech, cause irreparable harm, or that the law was “unconstitutionally vague.” Therefore, he ruled that the preliminary injunction would not be in the public interest.

In August 2024, CRN filed a brief with the U.S. Court of Appeals for the Second Circuit, seeking to overturn Carter’s decision, reiterating that the law violates the Constitution by targeting how products are advertised, labeled, or marketed, rather than targeting specific products or ingredients based on health or safety concerns. First Amendment scrutiny must occur, CRN argued, when a state restrictions are “triggered by the speech associated with the product.”

The association expressed disappointment in the decision made by the U.S. Court of Appeals for the Second Circuit. However, its broader lawsuit challenging the constitutionality of the law will proceed.

“While we are disappointed in the court’s decision not to halt enforcement at this stage, we remain confident in the strength of our constitutional challenge,” said Megan Olsen, general counsel and senior vice president at CRN. “This law improperly targets truthful, lawful marketing claims about dietary supplements and represents a troubling attempt to regulate speech, not safety.”

“This case is far from over,” said Steve Mister, president and CEO at CRN. “We are prepared to continue fighting for the principle that the government cannot suppress commercial speech simply because it disapproves of the message. Consumers and companies alike deserve regulatory frameworks that are rooted in science, not stigma.”

Several other state legislatures have introduced similar bills seeking to prohibit sales of dietary supplements marketed for muscle building or weight loss to anyone under the age of 18, developed with support from the Strategic Training Initiative for the Prevention of Eating Disorders (STRIPED) at Harvard.

In response to this broader trend, CRN stated that it maintains that reliance on a product’s marketing claims, rather than actual evidence of harm from the product itself, “violates the First Amendment by regulating speech in a way that does not directly and narrowly advance a substantial government interest.” The association pointed to a review which found no causative connection between the use of dietary supplements and eating disorders, conducted by Susan Hewlings, PhD, RD, a scientific consultant in the supplements industry, vice president of research at Radicle Science, and co-founder of Substantiation Sciences.