Judge dismisses NPA’s lawsuit to overturn NY law restricting some supplement sales

NPA’s lawsuit to overturn a New York law that restricts the sale of weight loss and muscle building supplements to minors has been dismissed. 

The news came Thursday, June 13, via a memorandum and order issued by the U.S. District Court for the Eastern District of New York. In dismissing NPA’s request for a preliminary injunction against the law, Judge Joan M. Azrack ruled NPA did not have standing to bring the suit in New York State. She dismissed the suit without prejudice, meaning NPA can refile a complaint, and, according to NPA’s president and CEO Dan Fabricant, Ph.D., the court battle is not over. 

“This was an odd decision; the Court appears to have misapplied the law on organizational standing,” Fabricant told Natural Products Insider. “However, the door is open to appeal and the case refiled. We’re exploring all options and aren’t done fighting this.” 

The dismissal of NPA’s suit comes on the heels of a ruling on a similar lawsuit filed by the Council for Responsible Nutrition. In that lawsuit filed in the U.S. District Court for the Southern District of New York, Judge Andrew L. Carter Jr. found CRN had standing and allowed the case to go forward, but only on First Amendment grounds. The rest of CRN’s claims were dismissed. 

Related:New Amazon policy requires supplements in three categories to have third-party verification

The New York law went into effect on April 22. Brick and mortar and online retailers within the state cannot sell weight loss and muscle building supplements without requiring proof of legal age (at least 18 years old). The ostensible reason for the law is to address concerns that these kinds of supplements can exacerbate eating disorders. 

Supplements – eating disorders link has been disputed 

The purported association between eating disorders and the supplement products targeted in the state law has been most prominently put forward by a research group called STRIPED (Strategic Training Initiative for the Prevention of Eating Disorders) that is housed within Harvard University’s T.H. Chan School of Public Health. 

Stakeholders within the dietary supplement industry have stridently combatted the notion that such an association exists. In addition to their assertion that there is no scientific evidence backing a link between supplement use and eating disorders, stakeholders maintain the New York law and others like it that have been proposed in other states including California and Massachusetts will restrict access to these products for all consumers — not just minors. 

Ruling on standing 

In dismissing NPA’s suit, the judge determined NPA did not provide enough specific information to establish standing. For example, she noted two affidavits in NPA’s court filings — including one provided by NPA member NOW Foods — failed to identify “a single product that plaintiff’s members intend to continue selling subject to the statute’s age-based sales restriction,” or “any product that its members intend to continue selling without such restrictions.” 

“While both affidavits state that NPA members sell and/or distribute products containing certain ingredients referenced in the statute, neither affiant indicates whether those products are labeled or represented as being for weight loss or muscle building, nor whether members intend to continue selling those products now that the statute is effective and if so, whether they intend to age-restrict,” Azrack wrote. 

Similarly, the judge was not convinced that NPA adequately showed “the statute will force its members to face a substantial risk of suffering economic harms that are actual or ‘sufficiently imminent’ to support standing.”  

NPA alleged that as a consequence of the law’s enactment, its members will suffer increased shipping costs, increased costs related to implementing age-verification procedures, and loss of revenue and online sales to brick-and-mortar stores. 

“But as with its asserted threat-of-enforcement-related injuries, plaintiff’s affidavits lack any specific detail demonstrating that any of its members has actually incurred the above costs to comply with the statute,” the judge wrote. “Nor has plaintiff shown that such a financial undertaking is sufficiently imminent for any of its members.”