In 2023, New York adopted a law prohibiting the sale of over-the-counter diet pills or dietary supplements “for weight loss or muscle building” to anyone under age 18. It defined the covered supplements as those “labeled, marketed, or otherwise presented for the purpose of achieving weight loss or muscle building.” Under the name “Council for Responsible Nutrition,” the dietary-supplement industry sued and sought a preliminary injunction against enforcement of the law on First Amendment, vagueness, and preemption grounds. The district court denied the request, and in an opinion issued today, the Second Circuit affirmed.
As to the First Amendment, the court found the law satisfied intermediate scrutiny under Central Hudson, in light of the substantial state interest in protecting the health of minors and sufficient evidence showing the law directly advanced that interest and was not substantially more burdensome than necessary. It also rejected the industry’s compelled speech argument based on the notion that requiring a seller to express that an item is age-restricted by law and validate ID somehow is requiring them (as opposed to the government) to state that the products are unsafe for minors.
The court next rejected the industry’s facial vagueness challenge on the grounds that it had not shown that no set of circumstances exists for which the law’s application would be unambiguous. It then rejected the First Amendment overbreadth claim based on its intermediate scrutiny analysis.
Finally, the court found that the law did not implicate the FDCA’s preemption of state labeling requirements. The court reasoned that the law did not require any manufacturer or seller to put anything on a label, but imposed an independent legal obligation triggered by the manufacturer’s choice to put something on a label.
