This week, the Natural Products Association (NPA) filed a lawsuit against New York State challenging the constitutionality of a new state law prohibiting the sale of over-the-counter diet pills and dietary supplements for weight loss or muscle building to consumers under the age of 18. The new law was drafted in response to concerns expressed by the Strategic Training Initiative for the Prevention of Eating Disorders that diet pills and weight loss or muscle building dietary supplements contribute to eating disorders among youth. The NPA, a trade association representing members of the natural products industry, does not agree with this premise and believes the new law is unconstitutional for a variety of reasons and should not be enforced.
NPA filed a complaint on December 4 in the United States District Court for the Eastern District of New York, alleging that the new law is unconstitutional for three main reasons. First, NPA argues that the Act is preempted by the Federal Food, Drug, and Cosmetic Act (FDCA), under which dietary supplements are federally regulated. For example, NPA alleges that the new law redefines "how to determine whether or not a product is a dietary supplement," a defined term under the FDCA. Second, NPA argues that the law is unconstitutional because it burdens interstate commerce in violation of the Dormant Commerce Clause. That clause prohibits states from regulating commerce outside their borders or punishing people whose conduct is legal in the state in which it occurred. For example, NPA alleges that "the Act seeks to regulate the conduct of any vendors who may be located outside of the State of New York and sell dietary supplements online to buyers located in New York. Thus, making otherwise lawful conduct unlawful in New York." Third, NPA alleges that the new law is void for vagueness because some of its key terms are left undefined (e.g., "weight loss" and "muscle building"), and the failure to provide definitions "will inevitably lead to improper arbitrary and capricious application of the law" by the state. Among other things, NPA has requested that the court declare the new law unconstitutional and enter an injunctive order restraining New York State from enforcing or suing under its new law.
The stakes of NPA's litigation are high. If NPA is successful in its lawsuit, it will be a victory for companies seeking to continue to sell over-the-counter diet pills and dietary supplements marketed for weight loss or muscle building in New York and may chill ongoing efforts to pass similar laws in other states.
We will be keeping a close eye on this litigation and will keep you updated.
