Potentially problematical bills and administrative efforts have been introduced in a number of jurisdictions, CRN said. Those include bills in the states of Connecticut, Illinois Massachusetts, New York, Oregon and South Carolina. Another measure is on the docket in New York City.
Bill targeting weight loss
One raft of measures deals with moves to prevent minors for being able to purchase weight loss and muscle building supplements. Such measures are being considered in Illinois, Massachusetts, New York City and New York State. The bills are highly similar to each other and bear a strong resemblance to bills introduced in the past. The Massachusetts bill is sponsored by State Rep. Kay Khan, D-Newton, who has repeatedly introduced such bills in the past.
“We are seeing so many of them this year. The bill in Massachusetts was similar to the one in Illinois and the others in New York. This tells us that this is a coordinated approach. There seems to be a group that has a strategy to introduce these bills in a number of states,” Steve Mister, president and CEO of CRN, told NutraIngredients-USA.
The bills are motivated by what CRN considers to be unsubstantiated concerns that the use of such products will exacerbate eating disorders and ‘body dysmorphia’ issues among young consumers.
The concerns of heath care professionals who treat eating disorders rest on research like that done by a group that included Harvard T.H. Chan School of Public Health professor S. Bryn Austin. In 2019 the group published a paper that asserts that the use of weight loss and muscle building supplements was associated with a three fold increased likelihood of serious adverse events among young consumers. CRN disputes the researchers’ methodology.
“They say these products are causing eating disorders and there is no evidence of that,” Mister said.
The New York City measure seeks specifically to restrict the sale to minors of supplement-type products based on senna (a laxative ingredient) and saffron. The move appears to be associated with an endorsement campaign from social media personality Kim Kardarshian, who hawked “Flat Tummy” lollipops that included a saffron extract aimed at promoting satiety. The ad campaign enraged many who claimed it would promote disordered eating among young consumers.
Restricting energy drinks
Another set of bills, in Connecticut and South Carolina, are aimed at restricting the sale of energy drinks to minors. The Connecticut bill was promoted by a group called the Committee on Children and defines an energy drink as “ soft drink that contains (A) not less than eighty milligrams of caffeine per nine fluid ounces, and (B) methylxanthines, B vitamins, herbal ingredients or an ingredient labeled as ‘energy blend.’ ” The South Carolina measure includes an almost identical definition.
Amanda Darlington, CRN’s director of government relations, said there’s plenty of evidence that these bills represent a coordinated effort to layer state regulation of dietary supplements onto federal rules.
“They use the same language, they submit the same testimony and in many cases they cite the same articles,” Darlington said.
Dietary supplement products by their nature can and do make restrictive statements on their labels, such as warnings against use by small children or pregnant or nursing mothers (foods cannot; they’re supposed to be inherently safe for anyone). But Mister said it’s bad policy to put that practice into the hands of legislators.
“These bills are a worry to consumers around the country. We opposed any kind of age restriction, especially because these are overly broad categories,” he said.
Rule making on claims substantiation
The Oregon issue represents a special case as it is a rule making that is meant to add language to state law that mimics the Federal Trade Commission’s stance on scientific substantiation for claims on dietary supplements. One argument is that this would merely bring state law into concord with federal rules.
But the big caveat, Mister said, is that it would create a private right of enforcement on health claims and open the door wide for the plaintiff’s bar. Those law firms presumably would ‘enforce’ this new provision based on which companies could afford to pay up following a demand letter, rather than whether certain health claims could put consumers at risk.
“Allowing a private plaintiff to sue based on the fact that they don’t think you have substantiation for your claim would open a whole Pandora’s Box for this industry. The FTC already regulates these claims, but that agency is very judicious about what cases it goes after and bases those decisions on the scale of consumer harm,” he said.