Amicus Brief: Council for Responsible Nutrition v. James

New York passed a law prohibiting minors from purchasing dietary supplements “marketed” or “advertised” for “weight loss” or “muscle building.” Perhaps some regulation of supplements could be a good idea, but the law doesn’t regulate the ingredients in supplements, only what can be said about them in marketing. The Council for Responsible Nutrition challenged the law on First Amendment grounds and lost in the Second Circuit, which upheld the law under the Supreme Court’s commercial-speech doctrine.

The commercial-speech doctrine gives less First Amendment protection to commercial speech, but it has many problems. First, it has little grounding in the original meaning of the First Amendment, as many justices have pointed out. Second, the test that is applied to commercial speech, intermediate scrutiny, is often functionally a rubber stamp for the law. Yet intermediate scrutiny requires some evidence that the commercial speech being regulated is causing harm. But the Second Circuit did not require the government to show actual empirical evidence that the marketing of a dietary supplement (as opposed to its ingredients) is reflective of a harm in that product.

The Manhattan Institute has filed an amicus brief supporting Supreme Court review. We argue that the Second Circuit improperly deferred to the legislature’s “reasonable judgment” in upholding the law. The Supreme Court’s commercial-speech cases require more than blind deference to the legislature. The Court should review the case to clarify the commercial-speech doctrine, which has become increasingly misapplied throughout the country.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.