Nutrabolt chief legal officer on state-led restrictions: ‘We need to work together’

16-Feb-2024 - Last updated on 16-Feb-2024 at 16:15 GMT

Attempts to restrict access to certain dietary supplement categories at the state-level could potentially pose the most significant threat to the industry since the passage of DSHEA, and the industry needs to unify in response, says Nutrabolt’s chief legal officer.

Speaking with NutraIngredients-USA at this week’s Sports & Active Nutrition Summit in San Diego, Michael DiMaggio, Nutrabolt’s chief legal officer and general counsel, said the industry needs to do more to educate brands, retailers and consumers about the threats posed by state-led efforts to restrict the sale of muscle building and/or weight management supplements to people under the age of 18.

“We need a cohesive message, we need to work together, we need to prevent any additional legislation of this kind, and we need to do whatever we can in New York to get the bill repealed and get them to see the unintended implications,” DiMaggio told us.

Proponents of the restrictions cite a purported link between the use of such products and the worsening of eating disorders.

“One of the frustrating things is that this was not intended to stop harmful products being sold in the marketplace,” DiMaggio said. “It is intended to prevent people of a certain age from having access to certain products but not necessarily because those products are harmful.”

The implications

New York Governor Kathy Hochul put her signature to a bill at the end of October 2023 after vetoing a similar bill in December 2022. The legislation is expected to go into effect in April 2024.

The New York bill defines dietary supplements for weight loss or muscle building as products labeled, marketed or otherwise represented for the purpose of achieving weight loss of muscle building but not including protein powders, protein drinks and foods marketed as containing protein unless those products contain an ingredient other than protein which would, considered alone, constitute a dietary supplement for weight loss of muscle building.

Examples of those ingredients include creatine, green tea extract, raspberry ketones, Garcinia cambogia and green coffee bean extract, according to the text of the bill.

“The bill was drafted in such a way where they didn’t really contemplate what would happen when the bill actually took effect,” DiMaggio said. “The ways it will impact us, just as a ‘for instance’, there’s enough ambiguity around the definition of what constitutes ‘muscle building’ or ‘weight loss’ that there is a group of products, and a significant number of categories of products, that may be included in this bill that were probably not intended.”

Protein products are excluded, he noted, but anything with the claim ‘muscle building’ was included. Additionally, any products referring to metabolism might be a product that’s included.

“So, if you’re selling something as simple as, or as safe as, coconut oil, and there’s any kind of a metabolism claim, that arguably may be covered by this regulation, which means that children under the age of 18 wouldn’t be able to access this without their parent, having it delivered and showing ID. That is a bigger hurdle than I think the industry is aware of,” DiMaggio said.

“I think we’re going to see significant increases in the cost of delivery, because all consumers in New York buying a product that falls under this umbrella will have to pay for delivery and be home and show identification to receive that product.”

DiMaggio also noted that a private right to action appears to exist, which would allow plaintiffs attorneys who have a client who has not been ID’ed to sue on behalf of the state.

“This is another piece of legislation that will create significant fodder for plaintiffs attorneys,” he said.

Patchwork

The issue in New York State is the most urgent because that bill has already passed, said DiMaggio, and the work to stop it is really focused right now on litigation, but similar bills are being considered in multiple other states. The text of all these bills is not identical, but there are distinctive similarities.

“It is quite possible that we are going to have a patchwork of 50 different pieces of legislation that companies are going to have to comply with, which is completely unmanageable, and I’m sure is not the intended effect,” DiMaggio said.

Watch the video for the full interview.

DiMaggio was one of the experts on a regulatory-focused panel discussion in San Diego that also featured Eva Hurt, VP of scientific and regulatory affairs at Coca-Cola; Robert Marriott, director of regulatory affairs at the American Herbal Products Association; Dr. Rob Wildman, CEO at TYM Athletic Performance; and Matt Orr, partner at Amin Talati Wasserman, LLP.