Regulating Marketing Claims on Dietary Supplements: The Effect on Commercial Speech

Speaking at SupplySide Connect New Jersey, Megan Olsen, the SVP and general counsel for the Council for Responsible Nutrition (CRN), discusses the recent petition to the US Supreme Court to reexamine the Second Circuit’s review of a recently enacted New York State supplement law.

In March 2026, CRN had filed the petition asking for a review of the law, which took effect in April, that restricts the sale of dietary supplements marketed for weight loss or muscle building to people over the age of 18. The organization is arguing that the statute represents a content-based restriction on commercial speech.

In this interview, Olsen explains the details of the petition, how the law potentially infringes on free speech, and how the outcome of the case can affect marketing claims for dietary supplements.

A transcript of his conversation can be found below.

Nico Saraceno: Ladies and gentlemen, Nico Saraceno, senior editor of Nutritional Outlook magazine, reporting live from SupplySide Connect in Secaucus, New Jersey. Joining me right now is Megan Olsen. She is the SVP and general counsel for the Council for Responsible Nutrition, also known as CRN.

Megan Olsen: Yes. Thank you. Happy to be here.

Saraceno: Yeah. I'm so happy that you're here. One of the first interviews of the day, and I know we have a lot to get to, and it's hard to consolidate some of these things because they're very intricate and you guys have been at the forefront of it. So let's dive right in. So first of all, CRN recently petitioned the US Supreme Court to review New York's supplement sales law. Now the argument has been made that it imposes restrictions based on marketing claims instead of ingredient safety. So, Megan, how do you see this case shaping the future of commercial speech and state level regulation for dietary supplements? If the court does decide to take this case up?

Olsen: Well, I'm glad you asked about this. And we filed our cert petition asking the Supreme Court to review the Second Circuit's review of the New York law. Very recently, just in the last, I guess, week and a half or so. It was docketed in early April. And so we're, there'll be a couple of different things that happen at the Supreme Court level. The New York attorney general who is defending the law has an opportunity to respond.

And so we're, we're looking for a timeline of late June, possibly early July to hear from the Supreme Court if they will pick up the case. So it's not an actual review of the case right now, but it's the first step is asking the Supreme Court to, to, to look at the issue and say, we want to review it. And then they'll we'll get a deeper dive into the case, into the fall. If that is what happens.

So a little bit about the case, as you mentioned, there is this, concern about what are they trying to regulate in New York. New York is the only state currently to have passed a law about these purported weight loss and muscle building dietary supplements. But other states have been very active over the years. Their legislators have introduced various versions of the bill. But currently, what the bills all have in common with the New York law is this attempt to regulate not based on ingredients, but based on speech, based on the marketing claims and other representations made about a product. So that's very concerning because it touches on fundamental right for everyone. First Amendment, free speech rights, free speech rights extend to commercial speech. So marketing claims and it's really telling.

In New York, there's been two versions of their attempt to regulate this area. They started out with a bill that would have targeted the ingredients that made it through the legislature, but was vetoed by the governor out of a concern that they didn't have appropriate resources. So they came back to the legislator And, you know, they said, okay, well, maybe we'll regulate based on marketing claims and went right to the speech angle. Yet their purported concern, they've raised concerns about dietary supplements, ability to affect eating disorders to cause eating disorders. We, CRN, has put in a lot of resources and research around that. There's no link between dietary supplements and eating disorders. And in fact, the legislators seem to have accepted that, even in New York, in our case, the courts seemed to dismiss that rationale. And we've seen other states where the legislators are saying, okay, we see that there, there's likely not a scientific link here, but we're still concerned about really what they seem to want to go after is unscrupulous actors adulterating dietary supplements with illegal ingredients.

So they're trying to impose restrictions based on legal speech, on legal dietary supplements, on companies that are selling these products, come safely compliant with all FDA requirements, safe and legal supported claims. Yet they turn to speech as this proxy. And our position is that should concern not just companies that sell dietary supplements that are caught up in the scope of this law, but everyone selling dietary supplements and really everyone's selling a consumer product. We've seen legislators, for example, in California, try to target cosmetic products using anti-aging claims.

It's this kind of knee jerk reaction of legislators to want to do something, but they're not quite sure how to do something, and they're going down this dangerous path of using speech. And they call it they're using it as this proxy for purportedly dangerous products. And the Second Circuit has some telling language in their decision where they talk about the, the speech being an indirect way of trying to target dangerous products. So that's kind of a roundabout way of bringing you then to talk about what the commercial speech rights are in this country. They're very robust. And the Supreme Court, over decades has developed a test that two important pieces of the test. We think the Second Circuit just completely ignored essentially at this point. It has to do with actually providing, the legislator has to provide real evidence that the way they're targeting speech materially advances what their concern is here. Their concern is products masquerading as dietary supplements containing dangerous ingredients. But yet you're targeting voluntary claims. And then the second piece that's really important in our case here is that any law that targets speech has to be narrowly drawn. And the courts are supposed to, they're supposed to analyze both prongs. And here the Second Circuit just said, well, we defer to the legislator. They think they've done this in the best way possible. So that's it. End of our analysis. And that's not the standard and that's very dangerous precedent. So we have petitioned the Supreme Court to review this action. We've seen other appellate courts, other circuits in the country on different issues get this correct.

Looking at the evidence, really looking at the legislator’s rationale and other ways that states can go about legislating products without infringing on speech. So we think it's a good time for the Supreme Court to weigh in. When you get to the Supreme Court level, it's less about the actual specific law and facts. It's more about the overall precedent being set.

And really, the Supreme Court has expressed interest in speech rights across the board. Commercial speech in particular, not only ensuring that the standards are protected, but there's actually some Supreme Court justices who signaled that there should be additional protections on commercial speech. And it's been over a decade. I believe we laid this out in our petition, but it's been quite a while since the Supreme Court has really provided, I think, good guidance down to the appellate court level as to the appropriate way to look at this test.

And so we think it's a great opportunity for them to weigh in on some questions that have been, you know, the appellate courts have looked at this differently across different jurisdictions. And we just think it's the time is right. So we're, we're, you know, optimistic that as this moves forward, that we will see the Supreme Court, taking their interest and determining that this is the time to review this matter.