Court of Appeals declines to grant preliminary injunction for NY law that bans the sale of weight management supplements to minors

The Council for Responsible Nutrition (CRN; Washington, D.C.) has announced that the U.S. Court of Appeals for the Second Circuit declined to grant a preliminary injunction to stop enforcement of a law that restricts the sale of weight management and muscle building supplements to minors. Oral arguments were heard on January 24, 2025. While the court did not change the lower court’s denial for a preliminary injunction, CRN’s lawsuit against the state’s law, which took effect on April 24, 2024, is permitted to proceed. That lawsuit challenges the constitutionality of the law on First Amendment grounds.

“While we are disappointed in the court’s decision not to halt enforcement at this stage, we remain confident in the strength of our constitutional challenge,” said Megan Olsen, CRN’s senior vice president and general counsel, in a press release. “This law improperly targets truthful, lawful marketing claims about dietary supplements and represents a troubling attempt to regulate speech, not safety.”

“This case is far from over,” added Steve Mister, CRN’s president and CEO. “We are prepared to continue fighting for the principle that the government cannot suppress commercial speech simply because it disapproves of the message. Consumers and companies alike deserve regulatory frameworks that are rooted in science, not stigma.”

CRN originally filed its lawsuit in March of 2024 seeking a preliminary injuction prior to the law taking effect. The judge denied the preliminary injunction in April of 2024, but ruled that the organization had standing to proceed with its lawsuit. The lawsuit survived New York State’s motion to dismiss in May of 2024. CRN filed an appeal on the decision to deny the preliminary injunction in August of 2024.

The rationale for the law is that it protect minors by reducing their risk of developing eating disorders. While a group called Strategic Training Initiative for the Prevention of Eating Disorders (STRIPED) at Harvard, which promoted this and similar legislation has argued that there is an association between eating disorder among teens and the use of dietary supplements, industry has long pushed back at this idea, arguing that there is in fact no causal link that dietary supplement use leads to a higher incidence of eating disorders. This was demonstrated in a recent review.

That review, authored by Susan Hewlings, PhD, noted that much of the research used to justify these laws does not distinguish between lawful dietary supplements and adulterated products that contain dangerous drugs. They simply refer to these products as “diet pills.”

“ A major design flaw in this study is that illegal substances and prescription drugs such as anabolic steroids, human growth hormone, and androstenedione were grouped together with dietary supplements. These are not dietary supplements and are not sold under this regulatory classification,” wrote Hewling. And while the study found that “supplement use was associated with higher Eating Disorders Examination-Questionnaire (EDE-Q) Global, Shape Concern, and Restraint scores in both males and females,” Hewling points out that this does not represent a causal relationship, and studies such as this do not prove that supplements cause eating disorders but that dietary supplements may be abused by those with eating disorders. She acknowledges that the DSM-V states that “dependence on enteral feeding or nutritional supplements taken orally is a symptom or warning sign of an eating disorder, specifically Avoidant/Restrictive Food Intake Disorder,” but emphasizes that a warning sign is not a “risk factor,” which occurs before the associated outcome, increasing its likelihood.

The issue is therefore not supplements, wrote Hewlings, but the intent or behavioral drivers. “Dietary supplements could be compared to exercise,” she explained to Nutritional Outlook. “For example, if we looked only at time spent exercising, we could say any professional athlete engages in excessive exercise to compete at the top level. However, most engage in well-designed programs with plans for recovery and nutrition to support their endeavors. When one engages in the exercise with a focus on thinness or achieving a body ideal as opposed to achieving optimal health or performance that’s when a problem is likely. It is a fine line but there are some warning signs that separate eating disorder behaviors from health or performance behaviors.”