Two identical bills have been introduced to the New York State Assembly (A05610-B) and Senate (S05823B) are an updated version of previous bills (S-16/A431) vetoed by Governor Kathy Hochul in January of 2023.
Two identical bills have been introduced to the New York State Assembly (A05610-B) and Senate (S05823B) to restrict minors from purchasing dietary supplements marketed to support weight management and muscle building. These bills are an updated version of previous bills (S-16/A431) vetoed by Governor Kathy Hochul in January of 2023. The Governor’s rationale for the veto was that the bill “require the Department of Health (DOH) to determine what products should be limited under this new law. DOH does not have the expertise necessary to analyze ingredients used in countless products, a role that is traditionally played by FDA…It would be unfair to expect retailers to determine which products they can and cannot sell over the counter to minors, particularly while facing the threat of civil penalties.”
The rationale echoed that of Governor Gavin Newsom who vetoed similar legislation in California. The new legislation offers a more detailed definition of what constitutes a product for “weight loss or muscle building,” and offers the courts a number of factors to consider when making a determination. For example, the new bills name specific ingredients, such as “creatine,green tea extract, raspberry ketone, garcinia cambogia, green coffee bean extract,” while making an exception for protein products unless they include ingredients that if taken alone would constitute a product for “weight loss and muscle building.”
The legislation also provides specific examples of the types of marketing these products may contain, such as expressing or implying that a product will:
“modify, maintain, or reduce body weight, fat, appetite, overall metabolism, or the process by which nutrients are metabolized; or
(ii) maintain or increase muscle or strength;
(c) whether the product or its ingredients are otherwise represented for the purpose of achieving weight loss or building muscle”
Likewise, the legislation also provides examples of how retailers might categorize or place items that would qualify them as “weight loss or muscle building” products, namely:
“(i) placing signs, categorizing, or tagging the supplement with statements described in paragraph (b) of this subdivision;
(ii) grouping the supplements with other weight loss or muscle building products in a display, advertisement, webpage, or area of the store; or
(iii) otherwise representing that the product is for weight loss or muscle building.”
Additionally, the legislation more specifically defines retail establishments, incorporating other means of purchasing “weight loss or muscle building” products. Specifically, the text states:
“‘Retail establishment’ means any vendor that, in the regular course of business, sells dietary supplements for weight loss or muscle building or over-the-counter diet pills at retail directlytothe public, including, but not limited to, pharmacies, grocery stores, other retail stores, and vendors that accept orders placed by mail, telephone, electronicmail, internet website, online catalog, or software application.”
Similar bills have been introduced throughout the country, and industry has largely succeeded in defeating them, but lawmakers continue to push for banning the sale of weight management and sports nutrition products to minors, citing a relationship between dietary supplements and eating disorders. Industry flatly rejects this claim, and the Natural Products Association (NPA; Washington, D.C.) found no adverse event reporting that would demonstrate a relationship between dietary supplements and eating disorders after filing a Freedom of Information Act (FOIA) request. Additionally, ingredients explicitly named in the legislation, such as creatine, have an established history of safe use. Beyond that, industry advocates argue that the overwhelming burden of the legislation will fall squarely on brick-and-mortar retailers, even if the law applies to e-commerce and other avenues.
Daniel Fabricant, PhD, president and CEO of NPA calls the legislation, “A full assault on brick-and-mortar without any justification or scientific basis behind it.”
Stakeholders can reach out to New York legislators via a grassroots campaign set up by NPA.