Council For Responsible Nutrition v. Letitia James, in Her Official Capacity as New York Attorney General

In 2023, the New York Legislature passed N.Y. Gen. Bus. Law §391-oo (the “Law”), which bans the sale to minors of dietary supplements that are “labeled, marketed, or otherwise represented” for “weight loss” or “muscle building.” To justify this content-based infringement on commercial speech, the government had to satisfy the intermediate scrutiny test set forth in Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980), which requires the government to demonstrate with empirical evidence that the specific regulation will actually and materially advance an important government interest, and that the infringement on commercial speech was a “last resort” among other potential, non-speechinfringing alternatives. Thompson v. W. States Med. Center, 535 U.S. 357, 371 (2002). The questions presented are:

1. Did the Second Ci rcuit er r in holding — contrary to the Fourth, Fifth, Sixth, Ninth and Tenth Circuits—that the third prong of the Central Hudson test can be satisfied without an evidentiary showing demonstrating that the specific manner of speech restriction will actually, and materially, ameliorate harm?

2. Did the Second Circuit err in watering down the fourth prong of the Central Hudson analysis by deferring to the New York legislature’s manner of regulating without any meaningful consideration of less-intrusive, alternative means, contrary to the analysis conducted by the majority of circuits?