A new law from New York State will require companies selling certain dietary supplements in the state to pay close attention to consumers' age. Last week, Governor Kathy Hochul signed into law Assembly Bill A5610D, which prohibits the sale of over-the counter diet pills and dietary supplements marketed for weight loss or muscle building to consumers under the age of 18.
The new law defines "[d]ietary supplements for weight loss or muscle building" as products "labeled, marketed, or otherwise represented for the purpose of achieving weight loss or muscle building." The definition excludes protein powders, protein drinks, and foods marketed as containing protein unless they contain an ingredient other than protein that would, "considered alone, constitute a dietary supplement for weight loss or muscle building." "Over-the-counter diet pills" are defined as drugs that are labeled, marketed, or otherwise represented for weight loss that can be sold with or without a prescription.
To determine whether a product is "labeled, marketed, or otherwise represented for the purpose of achieving weight loss or muscle building," the New York law asks courts to consider the product ingredients, and how the product is advertised. Ingredients that could lead New York courts to determine that a product is intended for weight loss or muscle building include creatine, green tea extract, raspberry ketone, Garcinia cambogia, green coffee bean extract, and steroids, as well as any ingredient approved by the U.S. Food and Drug Administration for weight loss or muscle building. Courts are also asked to consider whether the product's labeling or marketing bears statements or images that express or imply that the product will help to "modify, maintain, or reduce body weight, fat, appetite, overall metabolism, or the process by which nutrients are metabolized," or maintain or increase muscle or strength, or other, similar claims.
The new law forbids the sale of the above-defined products to individuals under the age of 18 and requires retailers to require proof of legal age for the purchase of such products. Retailers must use reasonable diligence to determine age and are forbidden to use the information they collect during the age verification process for any purpose beyond the statutory requirements, including data collection or advertising. Each violation could subject a company to a civil penalty of up to $500, and an injunction could be issued enjoining further violations.
It is important for retailers, manufacturers, and marketers of these products to be aware of these changes, as they may directly impact sales and marketing strategies directed toward the youth demographic. The law will be going into effect in April, so now is the time for affected businesses to implement age-verification mechanisms to ensure that they do not sell products as defined above to minors after the law goes into effect. Other states have considered similar bills, though they do not seem to be moving forward currently. The governor of California recently vetoed a similar bill.
