Theodora McCormick, Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm’s Princeton and Newark offices, was quoted in Natural Products Insider, in “NPA to Seek Injunction Against NY Law Related to Weight Loss Supplements,” by Josh Long.
Following is an excerpt:
The Natural Products Association (NPA) intends to file a motion for a preliminary injunction to block the New York attorney general from enforcing a law that restricts minors’ access to dietary supplement products marketed for weight loss or muscle building.
The law, passed as New York Assembly Bill A5610, takes effect on April 22.
In an April 1 letter to Federal Judge Joan Azrack, NPA requested a pre-motion conference to discuss the filing of a motion for a preliminary injunction to enjoin the state AG from “from enforcing or otherwise requiring compliance” with the law until the case is resolved.
Kevin Bell, an attorney in the nation’s capital who represents NPA, said in the letter that he conferred with Assistant Attorney General Patricia M. Hingerton. Bell requested the state AG “reconsider enforcing the Act until the resolution of this case, but, as of the date of this letter, defendant has not reconsidered and presumably intends to enforce the Act as soon as it goes into effect on April 22, 2024.”
NPA, which was granted permission this week to file a second amended complaint, has alleged the law (enacted as NY Gen. Bus. Law § 391-oo) violates several provisions of the U.S. Constitution, including the so-called dormant Commerce Clause. The most recent version of the lawsuit identifies some NPA members who will be directly harmed by the law: NOW Foods and The Vitamin Shoppe.
To prevail on a motion for a preliminary injunction, NPA must establish “(a) a threat of irreparable injury, (b) a likelihood of success on the merits and (c) that the balance of the equities tip in their favor and the injunction is in the public interest,” according to Bell’s letter to Azrack, who presides in the U.S. District Court for the Eastern District of New York.
Members of NPA will “suffer irreparable injury due to (a) the potential prosecution and imposition of monetary fines under the Act, if in the defendant’s discretion, it is determined a product sold by such member should be considered an ‘over-the-counter diet pill[s] or dietary supplement[s] for weight loss or muscle building’ (‘regulated product’), despite the members’ good faith efforts to understand what constitutes a regulated product under the Act, and/or (b) lost profits (or complete loss of business) as a result of the unavailability of the type of age verification services required under the Act and/or due to the significant increase in delivery costs associated with in-person hand-delivery,” Bell wrote.
New Jersey-based industry attorney Theodora McCormick maintained the lawsuits challenging the law and filed by NPA in December and the Council for Responsible Nutrition (CRN) in March contain “really strong” legal arguments.
“The statute is really really vague, and as a result, I think that [NPA] can show likelihood of success on the merits,” McCormick, a member of the law firm Epstein Becker & Green P.C., said in an interview. “To me, it’s going to come down to, can they convince the court that there’s a risk of irreparable harm here and persuade the court to enter an injunction?”
