Association says Supreme Court review is needed to protect First Amendment rights and prevent governments from restricting lawful products based on speech rather than evidence of product harm
The Council for Responsible Nutrition (CRN), the leading trade association for the dietary supplement and functional food industry, today announced it has filed its cert petition reply brief with the United States Supreme Court in its challenge to New York's law restricting the sale of certain dietary supplements to individuals under 18 based solely on how those products are labeled, marketed, or otherwise represented. The filing responds to the State of New York's opposition to CRN's petition for a writ of certiorari and explains why Supreme Court review is necessary to resolve significant First Amendment questions affecting businesses nationwide.
In its reply brief, CRN argues that the Second Circuit's decision weakens longstanding constitutional protections for commercial speech by allowing government restrictions based on speculation rather than evidence. According to CRN, the appellate court improperly accepted the Legislature's use of product marketing as a proxy for harm without requiring proof that restricting truthful marketing claims would directly reduce the harms the State identified.
The filing also contends that the Second Circuit departed from precedent by deferring to legislative judgment rather than requiring the State to demonstrate that less speech-restrictive alternatives would be insufficient. CRN argues these legal errors deepen existing disagreements among federal appellate courts regarding the standards governments must satisfy before restricting truthful commercial speech.
"Our reply brief makes clear that this case is not about whether states may protect minors from genuinely dangerous products—it is about whether the government may regulate truthful speech without demonstrating that doing so actually advances public health," said Megan Olsen, Senior Vice President and General Counsel at CRN. "The Second Circuit's decision allows legislative assumptions to substitute for constitutional scrutiny, weakening First Amendment protections that have governed commercial speech for decades. We believe the Supreme Court should take this opportunity to reaffirm that governments must rely on evidence—not speculation—when they seek to burden truthful communications about lawful products."
CRN's reply brief emphasizes that no one disputes the importance of protecting minors from dangerous products. Rather, the association argues that New York's law regulates speech—not product safety—by using marketing claims as the trigger for age restrictions while failing to demonstrate that those speech-based restrictions materially alleviate the harms the Legislature identified. That argument is strengthened by the fact that New York’s legislature had passed, and the governor vetoed, a similar bill the previous year that was targeted at specific potentially harmful ingredients without implicating commercial speech.
The filing further argues that allowing such an approach to stand could encourage similar speech-based regulations affecting lawful products across numerous industries. The significance of those issues has also been recognized by the Taxpayers Protection Alliance Foundation, the Manhattan Institute, the Pacific Legal Foundation, and others, which have filed amicus briefs this year urging the Supreme Court to review the case because of its broader implications for First Amendment protections governing truthful commercial speech.
Litigation history
CRN has challenged New York's age-restriction law at every stage since its enactment:
- October 2023: Having strenuously opposed the bill throughout the legislative process, CRN expressed alarm upon enactment that the legislation restricted lawful dietary supplements based on marketing claims rather than scientific evidence of product safety.
- March 2024: When the law became effective, CRN filed suit in the U.S. District Court for the Southern District of New York, alleging that the law violates the First Amendment by restricting truthful commercial speech and unnecessarily limiting consumer access to safe dietary supplements.
- April 2024: CRN sought a preliminary injunction to prevent enforcement of the law while litigation proceeded. Although the district court declined to issue the injunction, it recognized CRN's standing to pursue the case on behalf of its members.
- May 2024: The district court denied New York's motion to dismiss CRN's First Amendment claims, allowing the constitutional challenge to proceed on the merits.
- July-August 2024: CRN appealed the denial of the preliminary injunction to the U.S. Court of Appeals for the Second Circuit, and received support from the U.S. Chamber of Commerce, Consumer Healthcare Products Association, FMI – The Food Industry Association, and the National Association of Chain Drug Stores through an amicus brief supporting CRN's First Amendment arguments.
- November-December 2025: After the Second Circuit affirmed the denial of a preliminary injunction, CRN sought rehearing by the full court, arguing that the panel's decision weakened constitutional protections for truthful commercial speech. The Second Circuit denied rehearing.
- March 2026: CRN petitioned the United States Supreme Court for review, asking the Court to resolve conflicts among the federal circuits concerning the evidentiary burden governments must satisfy before restricting truthful commercial speech and the degree of judicial scrutiny required under the First Amendment. The previously mentioned amicus briefs were filed in support.
With today's filing, the certiorari briefing before the Supreme Court is now complete. The Court will determine in the coming months whether it will hear the case.
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About CRN: The Council for Responsible Nutrition (CRN), founded in 1973 and based in Washington, D.C., is the leading trade association representing the dietary supplement and functional food industry. Bringing together manufacturers, ingredient suppliers, and service providers, CRN unites its member companies around a shared commitment to science, transparency, and responsible business practices—advancing a strong, credible marketplace that supports consumer health and industry growth.
In an increasingly complex regulatory and media environment, CRN serves as the industry’s front line—shaping science-based policy, defending market access, and countering misinformation. Through strategic advocacy, self-regulatory leadership, voluntary guidelines, and evidence-based communications, CRN ensures that responsible companies are recognized, protected, and positioned to innovate and compete. Learn more at crnusa.org and follow @CRN_Supplements on X and LinkedIn.