Washington, D.C. — The Council for Responsible Nutrition (CRN), the leading trade association for the dietary supplement and functional food industry, today announced it has filed a petition for a writ of certiorari with the United States Supreme Court, seeking review of a Second Circuit decision that upheld a New York law restricting the sale of certain dietary supplements to minors based solely on how those products are labeled or marketed. This New York law is a content-based infringement on speech and is wholly different than laws that limit the sales of products based on their ingredients or demonstrated harm. The law broadly sweeps into its prohibition 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, SVP and General Counsel, Council for Responsible Nutrition. “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. The lower courts gave short shrift to the First Amendment by simply deferring to the New York legislature’s rationale for restricting speech. That approach significantly weakens long-standing First Amendment safeguards and opens the door to broader, unsupported limits on truthful communication. It also conflicts with precedent from the Supreme Court and other federal circuits.”
To be clear, CRN is strongly in favor of protecting minors—and everyone for that matter—from dangerous and illegal ingredients, but the New York law sweeps in truthful advertising about safe and beneficial products—while doing nothing to prohibit the sale of dangerous ingredients.
Background on the New York Law
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.”
Unlike traditional product safety regulations, the law does not target ingredients based on safety risks. Instead, it imposes restrictions triggered entirely by how a product is labeled or marketed—making it a content-based regulation of speech. 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.”
Rather than address the resource constraints, lawmakers subsequently shifted to a speech-based approach as a proxy for harm, explicitly regulating products based on what is said about them rather than what they contain. This is an ill-fitting, radical approach that sweeps up plainly safe supplements and does not address the supposed harms the legislature purported to try to prevent by enacting this law.
CRN’s Legal Challenge in New York
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 and imposing a speech-triggered sales ban.
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. The court also deferred to the legislature’s chosen regulatory approach without meaningfully evaluating less speech-restrictive alternatives.
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:
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
Whether it was appropriate for the Second Circuit simply 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 argues 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.
Why It Matters
CRN warns that allowing governments to regulate lawful products based on marketing claims—rather than any demonstrated risk caused by the product itself—could have sweeping implications far 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 & CEO of CRN. “That has serious implications not just for our members, but for any industry that communicates truthful information about lawful products. 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.”
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The Council for Responsible Nutrition (CRN), founded in 1973, is a Washington, D.C.-based trade association representing 160+ dietary supplement and functional food manufacturers, ingredient suppliers, and companies providing services to those manufacturers and suppliers. In addition to complying with a host of federal and state regulations governing dietary supplements and food in the areas of manufacturing, marketing, quality control and safety, our manufacturer and supplier members also agree to adhere to additional voluntary guidelines as well as to CRN’s Code of Ethics. Follow us on X @CRN_Supplements and LinkedIn