State-led restrictive bills back to the fore for 2023

By Stephen Daniells contact

- Last updated on GMT

© vovashevchuk / Getty Image
© vovashevchuk / Getty Image

Related tags: Dietary supplements, Dietary supplement industry, Bodybuilding, Sports nutrition, weight management products

With bills in New Jersey, Massachusetts, and California already working through the State legislatures, the dietary supplements industry is bracing for another year of attempts to restrict access to products.

A floor vote is scheduled on A3512​ in the NJ State Assembly this week. The bill seeks to prohibit the sale of certain diet pills and dietary supplements for muscle building to persons under 18 years of age under certain circumstances.

“It appears the authors of this bill don’t understand the market they are trying to restrict,” ​Steve Mister, president and CEO of the Council for Responsible Nutrition (CRN), told us.

While the New Jersey bill is like ones introduced in California and New York in 2022 in the sense that it targets muscle building and weight management products, A3512 is strictly about OTC (pharmaceutical) weight loss pills. While the sponsors may think they are addressing dietary supplements, the text makes it clear this targets OTC pills with a drugs fact panel, said Mister. 

On muscle building, the bill is “very much of concern to dietary supplements because it is so broad and so vague,”​ said Mister. It does exclude protein and only protein, but if you have a pre-workout with protein plus beta-alanine plus BCAAs, then this would potentially be restricted, as would products formulated with creatine or carnitine.

A Senate version (S2387​) of the bill has been slowed down by being referred to the Senate Budget and Appropriations Committee, explained Kyle Turk, VP of government affairs for the Natural Products Association (NPA), who testified against the bill last November​.

Similar bills managed to pass State Legislatures in California and New York last year, but ultimately met with a gubernatorial veto from both Gavin Newson (CA)​ and Kathy Hochul (NY)​.

A restrictive bill has already been reintroduced in California as the new state legislature gets to work following elections last November.

AB-82​ appears to be exactly the same as the bill Gov Newsom vetoed in September 2022 will have to proceed through the whole legislative process again, including committees, the Assembly, and the Senate.

Mister said he saw this more as a place holder, while Turk said there may be plans to amend the bill to avoid another veto from the governor.

Energy drinks, too

2023 has also started with efforts in Massachusetts to restrict access for minors to energy drinks.

State Representative James Murphy introduced HD.3839 on January 20, “An Act to prohibit the sale of "energy drinks" to persons under the age of 18”.

The bill seeks to punish anyone who “distributes, delivers, gives away or sells, any “Energy Drink” or other ingredient, substance or beverage that exceeds a caffeine content of 71 milligrams per 12 ounce serving and contains taurine and glucuronolactone or a soft drink that is classified as a dietary supplement not regulated by the Food and Drug Administration and that contains 80 or more milligrams of caffeine per eight 8 fluid ounces and generally includes a combination of methylxanthines, B vitamins and herbal ingredients which are advertised as being specifically designed to provide or increase energy to any persons under the age of 18.”

Daniel Fabricant, PhD, NPA’s President and CEO, noted that the bill contains the old “unregulated dietary supplements”​ line, while also asking what the story behind the bill is, other than getting some attention.

“If caffeine is the bad guy, then why not go after coffee shops? How do you police vending machines?” ​he said.

Indeed, all the bills appear to target local brick and mortar retailers, and do not contain enforcement language around online sales and other forms of commerce. 

“These bills would just drive sales to the internet,” ​said Mister. “Look at the FDA: Products of concerns are much more likely to be found in the obscure corners of the internet. Putting age restrictions on these products is not the way to address any concerns.”

                                                                                                                                       

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