‘We aren’t done fighting this’: NY judge dismisses NPA’s suit against restrictive supplements law
In an order dated June 13, Judge Azrack stated: “The Court lacks subject matter jurisdiction over this dispute because Plaintiff has not demonstrated Article III standing to bring its claims as an organization.”
In response, Daniel Fabricant, PhD, NPA president and CEO, said: “This was an odd decision; the Court appears to have misapplied the law on organizational standing. However, the door is open to appeal and the case being refiled. We’re exploring all options and aren’t done fighting this.”
New York law
All of this is focused on a law that went into effect on April 22 (A.5610/S.5823) in the State of New York that restricts access of minors to weight loss or muscle building dietary supplements.
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 of 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 of muscle building.
Examples of those ingredients include creatine, green tea extract, raspberry ketone, Garcinia Cambodia 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.
NPA also filed a motion for a preliminary injunction, which Judge Azrack had limited to the Dormant Commerce Clause following her reading of a decision in the Southern District of New York on an unsuccessful attempt for a preliminary injunction by the Council for Responsible Nutrition (CRN).
Judge Azrack’s dismissal was without prejudice, which leaves the door open for NPA to appeal and refile the complaint.
“We are disappointed in this ruling but believe there is still an opportunity to block the damaging effects of this misguided law," said Dr Fabricant. "We are weighing all of our options because we are determined to protect consumers and our industry from these baseless attempts to limit the sale of these natural products to people who want to purchase them."
