Washington, D.C.—As WholeFoods Magazine has reported, the push to restrict access to supplements has succeeded in New York state, despite opposition and efforts to oppose the bill from the natural products industry. In October 2023, Governor Kathy Hochul (D-NY) signed A.5610/S.5823 into law to ban the sale of certain weight loss and sports nutrition dietary supplements to New York consumers under the age of 18. The law minimizes public access to dietary supplements and, requires a prescription to access the products in certain situations. Retailers who fail to comply with the law, which will likely take effect in April 2024, would be subject to fines for each infraction. 

Governor Hochul has already vetoed a similar bill in December 2022, expressing concerns that the NY state health department lacked the critical expertise needed to evaluate ingredients used across various dietary supplement products. Due to Hochul's reversal and decision to sign A.5610/S.5823 into law, the Natural Products Association (NPA) has filed a complaint in the U.S. District Court for the Eastern District of New York on December 4, 2023, asserting that the law is unconstitutional. 

“Governor Hochul’s decision to flip-flop and cave to anti-supplement charlatans is evidence she cares more about politics than New Yorkers ability to stay healthy,” said Daniel Fabricant, Ph.D., President and CEO of the NPA, in a press release. “Not only is this unconstitutional, but this prohibition is a bad policy threatening the ability of nearly 80% of Americans to access wellness products they’ve relied on for their health routines. It also violates the U.S. Constitution because it hands the state’s executive branch unfettered discretion to restrict access to dietary supplements and relies on an absurd enforcement mechanism to enforce compliance. We believe the court will recognize the serious concerns raised and declare it unconstitutional.”

Making its case, NPA said the prohibition and restriction of dietary supplements should be declared unconstitutional because of the following violations:

  • The Federal Food, Drug, and Cosmetic Act (FFDCA) preempts enforcement of the Act.
  • The Act’s definitions conflict with the definitions found in the FFDCA.
  • The Act, in combination with other provisions in New York’s General Business Law, improperly allows for private causes of action, which are exclusively in the purview of the FDA.
  • The provisions of the Act that conflict with the FFDCA or are left undefined will inevitably lead to improper, arbitrary, and capricious application of the law.

NPA's complaint seeks the following relief:

  • Declare that the Act either is unconstitutional or is preempted by the FFDCA.
  • Declare the Act is unconstitutional because it discriminates against interstate commerce.
  • Issue an injunctive order restraining the Attorney General’s Office from enforcing the Act.

Spreading the word on social media, Dr. Fabricant said the recent legislation is based on hysteria, and issue a call to action to the industry to join the fight to ensure access to dietary supplement. Information on advocacy efforts can be found on the advocacy page on NPA's website.

Learn more and join the conversation Naturally Informed education session

On December 6, 2023, Dr. Fabricant will be joined by Rick Collins, Esq., partner in the Long Island-based law firm of Collins Gann McCloskey & Barry, at the Naturally Informed virtual conference Active Aging: Mastering the Market for the session The Impact of Current Policy & Enforcement on the Potential of the Active Nutrition Market. The two legal, regulatory, and policy experts will discuss the NY law and current issues in enforcement priorities, state initiatives and industry engagement gaps that threaten innovation and may stifle potential for the expanding active nutrition market. Attendees will be able to participate in a live Q&A session to get their questions answered. Registration is free and open now.

Background on the push for age-restriction laws

As Susan J. Hewlings, Ph.D., RD, and Douglas S. Kalman, Ph.D., RD, have explained to WholeFoods Magazine readers, dietary supplements are under attack from the Harvard-based organization STRIPED (Strategic Training Initiative for the Prevention of Eating Disorders), which claims that certain dietary supplements cause eating disorders. "Part of their efforts have been to propose age restricted legislation in various states, including New Jersey, Rhode Island, New York, California, Colorado, Missouri, Maryland, and Massachusetts, some of which have come close to passing," Drs. Hewlings and Kalman explained. "While the details of the proposed legislation vary from state to state, the main objective of all of them is to limit access of teens to specific dietary supplements that they refer to as 'weight loss' or 'diet' supplements. These include protein, creatine, branched chain amino acids, and diet pills, which are not clearly defined. The research they reference to support their platform is full of scientific holes, which are discussed in a recent review published in Nutrients."