MARCH 16, 2024
Dear Retailer Partners to CRN,
As a retailer partner to CRN’s members, I wanted you to know that earlier today CRN has filed a lawsuit in federal court in the Southern District of New York seeking to enjoin enforcement of the recently-enacted New York law that would place age restrictions on the sale of a broad range of dietary supplements. We know these new restrictions place a tremendous burden on retailers who are at “ground zero” for determining which products are impacted by this incredibly ambiguous and subjective law.
The CRN Complaint alleges four separate reasons why the court should enjoin the New York law:
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First, the Complaint alleges that the vagueness of the law and its reliance on the claims and representations that are made for products, rather than any demonstrable harm from the products, violates the Free Speech clause of the First Amendment. The law unavoidably chills legitimate and truthful commercial speech—denying marketers from making these claims, and consumers from receiving this truthful information.
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Second, the Complaint lays out in great detail the misguided representations made to the legislature and the Governor that led to the law’s passage. There is simply no evidence that these products cause eating disorders and the legislative record demonstrates that. We argue that it is an Excessive Imposition of the State’s Police Power to restrict otherwise legal products on such a flimsy house of cards.
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Third, the law violates Due Process under the Fourteenth Amendment because it is so vague and subjective that it fails to provide adequate notice as to which products require compliance with the Act. Because it is impossible for CRN’s members, and the retailers that sell CRN’s members’ products to New York consumers, to identify which of their activities are governed by the Act, lawful conduct is infringed because they don’t know how the law will be construed.
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And lastly, CRN’s lawsuit alleges that the law violates the Supremacy Clause because the age restrictions imposed by the New York law create burdens on lawful and truthful claims that are clearly permitted as structure/function claims under the federal Food, Drug & Cosmetic Act. This improperly infringes on federal authority and is pre-empted by federal law.
You can read our press release from earlier today here, or read the entire Complaint here.
Please know that we are working to remove this burden from your sale of safe and beneficial dietary supplements. I will keep you updated on our progress. If you have any questions, please feel free to reach out.
Steve Mister
President & CEO
Council for Responsible Nutrition