The Council for Responsible Nutrition (CRN) has filed a petition for a writ of certiorari with the U.S. Supreme Court seeking review of a Second Circuit decision that upheld a New York law restricting the sale of certain dietary supplements to minors.

CRN said the New York law is a content-based infringement on speech, given that restrictions are based on how products are labeled or marketed, rather than ingredients or demonstrated harm. CRN argued the law effectively prohibits products that are safe, beneficial, and have never been shown to harm minors. 

CRN’s petition urges the Court to reaffirm First Amendment protections for commercial speech and to resolve a growing split among federal appellate courts regarding the evidentiary and judicial standards required to justify government restrictions on truthful, non-misleading communications. 

“This case goes to the heart of how the government can restrict commercial speech and the high bar that must be upheld for content-based speech restrictions,” said Megan Olsen, senior vice president and general counsel for CRN.

“The Second Circuit allowed New York to justify the law without evidence that it will actually address the harms the state identified and without requiring the state to demonstrate that the remedy was ‘narrowly tailored’ so as not to chill legitimate protected speech,” she added.

The lower courts improperly deferred to New York lawmakers, weakening First Amendment protections and allowing unjustified limits on truthful speech that conflict with Supreme Court and federal precedent, Olsen noted.

CRN said that it supports the protection of minors, and all consumers, from dangerous and illegal ingredients, but the New York law affects truthful advertising about safe and beneficial products, without restricting dangerous ingredients. 

Background

The case centers on New York General Business Law § 391-oo, enacted in 2023 and effective April 2024, which prohibits the sale of dietary supplements to individuals under 18 if those products are “labeled, marketed, or otherwise represented for the purpose of achieving weight loss or muscle building.”  

The law does not target ingredients based on safety risks. Instead, it imposes restrictions triggered by how a product is labeled or marketed. The law followed an earlier legislative effort that would have restricted supplements based on specific ingredients identified by the New York Department of Health. 

That approach was vetoed by Governor Kathy Hochul because, according to the Governor, the state’s department of health “does not have the expertise necessary to analyze ingredients used in countless products, a role that is traditionally played by the FDA.”    

Lawmakers subsequently shifted to a speech-based approach, explicitly regulating products based on what is said about them rather than what they contain. 

New York’s age-restriction law has set a precedent, prompting other states to propose similar statutes.

CRN’s Legal Challenges

CRN filed suit in March 2024 in the U.S. District Court for the Southern District of New York, alleging that the law violates the First Amendment by restricting truthful commercial speech.  

The district court denied CRN’s request for a preliminary injunction in April 2024. In November 2025, the U.S. Court of Appeals for the Second Circuit affirmed that decision, concluding that the law satisfied the Central Hudson test for commercial speech restrictions. 

In doing so, the Second Circuit relied in part on “common sense” in justifying its decision, rather than requiring empirical evidence that the restriction would directly and materially advance the state’s public health goals.

CRN’s Second Circuit petition for rehearing en banc was denied in December 2025.  

Questions Presented to the Supreme Court 

CRN’s petition asks the Supreme Court to address two key issues: 

1. Whether the Second Circuit erred in holding, contrary to numerous other federal circuit courts, that restrictions on commercial speech can be justified without requiring evidence that the speech restriction actually and materially ameliorates harm; and 
2. Whether it was appropriate for the Second Circuit to defer to legislative judgment without any meaningful consideration of less-intrusive, non-speech-based alternatives, in contradiction of the majority of other federal circuit courts.    

CRN argued that the Second Circuit’s decision conflicts with multiple other federal circuits and weakens the evidentiary and tailoring requirements that have long governed commercial speech cases. 

Implications

CRN warned that allowing governments to regulate lawful products based on marketing claims could have sweeping implications beyond dietary supplements. 

“If this decision stands, it creates a dangerous roadmap for regulating products using speech as a proxy rather than evidence of actual harm caused by the product,” said Steve Mister, president and CEO of CRN.

“That has serious implications not just for our members, but for any industry that communicates truthful information about lawful products,” he added. “The First Amendment requires more than speculation or allowing truthful messages to become proxies for perceived harm. Legislatures should have more than a hunch or wishful thinking when they restrict speech.”