The Council for Responsible Nutrition (CRN) announced it filed a petition for a writ of certiorari with the U.S. Supreme Court, seeking review of a Second Circuit decision that upheld a New York law restricting the sale of dietary supplements to minors based solely on how those products are labeled or marketed.
The case centers on New York General Business Law Section 391-oo, which was enacted in 2023 and effective April 2024, which prohibits the sale of dietary supplements to individuals under 18 if those products are “labeled, marketed or otherwise represented for the purpose of achieving weight loss or muscle building.” CRN has been fighting the law since 2024.
CRN argues this law is a “content-based infringement on speech” and is wholly different from laws that limit the sale of products based on their ingredients or demonstrated harm. The law broadly sweeps into its prohibition products that are safe, beneficial and have never been shown to harm minors.
CRN added it is strongly in favor of protecting minors—and everyone—from dangerous and illegal ingredients, but the New York law “sweeps in truthful advertising about safe and beneficial products while doing nothing to prohibit the sale of dangerous ingredients.”
CRN urges the Supreme Court to reaffirm the First Amendment protections for commercial speech and to resolve a growing split among federal appellate courts regarding the evidentiary and judicial standards required to justify government restrictions on truthful, non-misleading communications.
“This case goes to the heart of how the government can restrict commercial speech and the high bar that must be upheld for content-based speech restrictions,” said Megan Olsen, senior vice president and general counsel at CRN. “The Second Circuit allowed New York to justify the law without evidence that it will actually address the harms the state identified and without requiring the state to demonstrate that the remedy was ‘narrowly tailored’ so as not to chill legitimate protected speech. The lower courts gave short shrift to the First Amendment by simply deferring to the New York legislature’s rationale for restricting speech. That approach significantly weakens long-standing First Amendment safeguards and opens the door to broader, unsupported limits on truthful communication. It also conflicts with precedent from the Supreme Court and other federal circuits.”
CRN’s petition asks the Supreme Court to address two key issues:
- Whether the Second Circuit erred in holding, contrary to numerous other federal circuit courts, that restrictions on commercial speech can be justified without requiring evidence that the speech restriction actually, and materially ameliorates harm.
- Whether it was appropriate for the Second Circuit to simply defer to legislative judgment without any meaningful consideration of less-intrusive, non-speech-based alternatives, in contradiction of the majority of other federal circuit courts.
CRN warns allowing governments to regulate lawful products based on marketing claims—rather than any demonstrated risk—could have sweeping implications far beyond dietary supplements.
“If this decision stands, it creates a dangerous roadmap for regulating products using speech as a proxy rather than evidence of actual harm caused by the product,” said Steve Mister, president and CEO of CRN. “That has serious implications not just for our members, but for any industry that communicates truthful information about lawful products. The First Amendment requires more than speculation or allowing truthful messages to become proxies for perceived harm. Legislatures should have more than a hunch or wishful thinking when they restrict speech.”
For more information, visit www.crnusa.org.
