Four business organizations – The U.S. Chamber of Commerce, Consumer Healthcare Products Association (CHPA), Food Marketplace Inc. (FMI), and the National Association of Chain Drug Stores (NACDS) – have filed an amicus brief supporting the Council for Responsible Nutrition (CRN)’s challenge against New York’s law placing an age restriction against the sale of dietary supplements marketed as weight loss or muscle building products.

CRN’s lawsuit, which is advancing after a state motion to dismiss the case, argues that the law targets protected commercial speech by using marketing and labeling as “triggers” to determine which products are subject to sales restrictions.

The law, CRN alleges, infringes on the first amendment by “burdening protected speech and failing to meet the heightened scrutiny standards that infringement of a constitutional right requires.”

The district court acknowledged a potential First Amendment violation but refused to grant a preliminary injunction that would have halted the enforcement of the law while litigation is pending.

The U.S. Chamber highlights the critical nature of the case for broader the broader business community, and argues that the state’s use of speech as a trigger for legal restrictions sets a dangerous precedent which could affect numerous industries. Its arguments align with CRN’s position, and call for heightened First Amendment scrutiny to statutes that impose burdens on speech.

“We are grateful for the robust support in this critical legal challenge, and the backing of the U.S. Chamber, CHPA, FMI and NACDS,” said Steve Mister, President and CEO of CRN. “The amicus brief articulates the fundamental issues at stake, not just for the dietary supplements industry, but for all businesses that rely on their right to communicate freely about their products.”

The amicus brief outlines several arguments of the legal challenge, including:

• The statute uses labels and marketing, forms of protected speech, to determine its applicability, thereby burdening speech without adequate justification.
• The government’s defense and district court’s determination that the statute merely regulates conduct misreads that the key to whether a product is subject to the law depends on speech, and “reflects with distressing ease with which governments may seek to ‘control speech by recharacterizing it as conduct.’”
• The district court’s decision failed to recognize the statute’s implications for First Amendment rights, warranting a second review of the law and proper application of First Amendment scrutiny.
• The statute’s vague definitions and requirements place undue burdens on businesses, leading to potential punitive measures for inadvertent non-compliance.