Age Limits on Bodybuilding, Weight-Loss Supplements Survive First Amendment Challenge

When the New York Legislature decided to prohibit the sale of bodybuilding and weight-loss supplements to minors, it directed the state health department to promulgate a list of covered ingredients. The governor vetoed the bill on the grounds that making such determinations was not within the health department's expertise.

On its next try, the legislature decided to rely on the supplements' intended use, applying the prohibition to supplements that are "labeled, marketed or otherwise represented for the purpose of achieving weight loss or muscle building, but shall not include protein powders, protein drinks and foods marketed as containing protein unless [they contain other ingredients] which would, considered alone, constitute a dietary supplement for weight loss or muscle building." The bill's sponsor explained the change as follows:

In 2022, the Senate and Assembly passed legislation to prohibit the sale of these dangerous diet pills and dietary supplements to minors, based on a list of covered products to be developed by the Department of Health. The legislation was vetoed, due to concerns about the efficacy of a static list of covered products and the capacity of the Department of Health to develop such a list. Regardless of their ingredients and efficacy, products may be marketed as weight loss drugs and have serious health and mental health risks. This legislation takes a new approach, focused on the way products are marketed, regardless of their ingredients … This approach will target drugs based on their marketing …

This time, the governor signed. The bill took effect as N.Y. Gen. Bus. Law § 391-oo(1)(a).

A trade association (the Council for Responsible Nutrition, or CRN) sued to enjoin enforcement. One might have expected the challenge to focus on preemption in light of the food, beverage and supplement industries' not-uncommon sparring over the reach of state regulation. But the statute's approach of defining the category of regulated supplements based on how they were advertised resulted in CRN's challenge being focused on the First Amendment.

In the district court and on appeal from its denial of a preliminary injunction, the CRN argued that Section 391-oo is a content-based regulation of commercial speech because it restricts sales based on what manufacturers say about their products. For example, a supplement promoted for digestive health could be sold to minors, but an identically formulated product advertised for weight loss and sold under a different trade name would require the retailer to obtain proof of the buyer's age. Because the law's restrictions turned on the content of the manufacturers' speech, CRN argued for intermediate scrutiny under the familiar Central Hudson test applicable to commercial speech. Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). If applicable, this standard would require the court to determine whether 1) the expression is protected by the First Amendment, concerns lawful conduct and is not misleading, 2) the asserted governmental interest is substantial, 3) the regulation directly advances the asserted government interest and 4) the regulation is no more extensive than necessary to serve that interest.

At the district court, the state argued that the statute did not implicate the First Amendment at all because it regulated conduct instead of speech. The district court agreed with this but held in the alternative that if intermediate scrutiny under Central Hudson was the correct measure of the law's constitutionality, it passed muster. Council for Responsible Nutrition v. James, 2024 WL 1700036 (S.D.N.Y. April 19, 2024).

Application of Intermediate Scrutiny under Central Hudson

The state continued this argument on appeal, but the U.S. Court of Appeals for the Second Circuit assumed, without deciding, that the statute was a content-based regulation of speech and, thus, subject to intermediate scrutiny. It thus analyzed the statute under the Central Hudson framework. Council for Responsible Nutrition v. James, 159 F.4th 155 (2d Cir. 2025). Because there was no dispute that the speech at issue concerned lawful conduct and was not misleading, the analysis proceeded on the remaining three prongs of the Central Hudson test.

Substantial Governmental Interest

The parties disputed how to frame the interest at stake, with the state arguing for a compelling interest in the protection of minors' health and CRN countering that there is no interest in restricting the disclosure of accurate information, (i.e., the benefits and attributes of the supplements at issue). The court wasted little time in resolving this issue in the state's favor because Central Hudson asks what interests are asserted by the government, not whether the regulation of speech is effective at achieving the asserted goal. Id. at 164.

Directly Advances the Asserted Interest

The court found the evidence sufficient to support the state's position that weight-loss and bodybuilding supplements may cause medical problems in minors, relying primarily on scientific evidence in the legislative record. The question then became if those adverse health effects would be meaningfully reduced by the statute's reliance on the content of the manufacturers' marketing to identify which supplements were subject to the age restriction. It held that "common sense" supported the required linkage, concluding that "[w]hen a product's marketed purpose is an indicator of its risks, restricting sales of a product on that same basis – its marketed purpose – will directly advance the goal of reducing those risks." Id. at 164-65.

No More Extensive Than Necessary

One of CRN's more interesting arguments was that the legislature could have achieved its goals through means that did not implicate speech, namely by regulating supplements based on their ingredients. One might consider the legislative history as supporting this argument, given that the legislature's first attempt took just this approach. The court, however, credited the governor's veto of that bill "for a legitimate reason" as demonstrating that the operative statute's approach of using "a product's marketing as a proxy" was a "reasonable judgment" to which the court was required to deter. Id. at 165.

Compelled Speech

In addition to challenging the statute as an unconstitutional burden on its members' speech, CRN also raised a compelled-speech claim, arguing that the statute's age verification requirement forced retailers to communicate the message that the covered products are unsafe for minors. The court assumed without deciding that this implicated expressive conduct but made quick work of this argument, observing that age verification is ubiquitous in American commerce, and if it conveyed a message that the supplements at issue were unsafe for minors, "there is little risk that this message would be confused with CRN's or its members speech." Id. at 167.

Takeaways

For industry participants, the practical takeaway is straightforward: The law stands, at least for now, and New York retailers must verify age before selling weight-loss or muscle-building supplements.

More generally, the case offers an interesting First Amendment case study: When the legislature drafted a statute triggered by marketing content rather than product formulation – in response to the governor's veto of its preferred approach based on her perception of the limited capabilities of the state health department – the legislature transformed a seemingly routine product regulation issue into a First Amendment case.

Once the state prevailed on framing the asserted governmental interest as the protection of minors' health, it is perhaps unsurprising that Second Circuit found the statute survived intermediate scrutiny. The interest in protecting minors' health is one asserted in support of a wide variety of legislation, much of which attracts greater public controversy than the regulation of dietary supplements.

The Second Circuit denied CRN's petition for rehearing en banc. The case remains stayed in the district court on consent of the parties based on CRN's plan to file a certiorari petition seeking U.S. Supreme Court review.