NY Judge restricts NPA to Dormant Commerce Clause for preliminary injunction

24-Apr-2024 - Last updated on 24-Apr-2024 at 14:07 GMT

Following a hearing on April 23, a judge in the Eastern District of New York will allow the Natural Products Association to pursue a motion for a preliminary injunction against a new restrictive law, but the effort will be limited by Friday’s decision against another trade association in New York’s Southern District.

The hearing concerned a law that came into effect this week to restrict access of muscle building and weight loss supplements to people under the age of 18.

Speaking with NutraIngredients-USA, Kevin Bell, partner at Arnall Golden Gregory and counsel for NPA, said the hearing with US District Judge Joan Azrack lasted approximately 20 minutes, during which the judge shared her thoughts and plans based on her reading of a decision in the Southern District of New York on attempts for a preliminary injunction by the Council for Responsible Nutrition (CRN).

U.S. District Judge Andrew Carter Jr. denied CRN’s attempt Friday afternoon.

Bell explained that Judge Azrack will allow NPA to pursue a preliminary injunction based on the Dormant Commerce Clause, which limits the association’s options in seeking early injunctive relief.

Next steps for the court will be for briefings on NPA’s motion for a preliminary injunction (recrafted to focus on the Dormant Commerce Clause), followed by the NY Attorney General’s motion to dismiss NPA’s lawsuit. Final briefings have to be done by July 1.

Restrictions

The legislation (A.5610/S.5823) went into effect April 22.

The law defines dietary supplements for weight loss or muscle building as: products labeled, marketed, or otherwise represented for the purpose of achieving weight loss or muscle building, but not including protein powders, protein drinks and foods marketed as containing protein unless those products contain an ingredient other than protein which would, considered alone, constitute a dietary supplement for weight loss or muscle building.

Examples of those ingredients include creatine, green tea extract, raspberry ketone, Garcinia cambogia and green coffee bean extract, according to the text of the bill.

The law also states that a dietary supplement may be subject to the age-based sales restriction through the actions of the retailer by “placing signs, categorizing or tagging the supplement with statements,” suggesting that the supplement will impact weight, fat, appetite, metabolism, muscle or strength.

The bill was signed into law at the end of October, with NPA filing suit against New York in December.