OPINION & ORDER Six months after the New York Legislature passed N.Y. Gen. Bus. Law §391-oo, Council for Responsible Nutrition (“CRN”) brings this emergency request for preliminary injunction on the eve of the Statute’s effectuation, asking this Court to prevent the State from enforcing this law. For the reasons set forth below, this Court denies this extraordinary relief. Plaintiff has not demonstrated a likelihood of success on a constitutional injury that would excuse this delay. Moreover, granting a preliminary injunction is not in the public interest. BACKGROUND The following facts are drawn from the Amended Complaint (“AC”), Plaintiff’s declaration in support of its motion for preliminary injunction, Defendant’s declaration in opposition to the motion for preliminary injunction, Defendant’s memorandum in support of its motion to dismiss, and Plaintiff’s opposition to Defendant’s motion to dismiss, and the documents relied upon therein. I. STATUTORY FRAMEWORK Beginning in 2020, members of the New York State Legislature sought to address the growing prevalence of the “serious public health problem” of eating disorders “affecting youth and adults of all races, ages, and genders.” Sponsor’s Mem. in Support for A10138 (2020), at 1; accord Sponsor’s Mem. in Support, in Bill Jacket for ch. 558 (2023), at 1-2. One central concern for the Legislature was that studies showed that eating disorders are mental health condition that may be identified and diagnosed based on “the presence of what clinicians call unhealthy weight control behaviors.” See id. One of these signals is misusing dietary aids to try to lose weight or build muscle. See id. Legislators were also concerned that dietary supplements used for weight loss or muscle building were readily available “alongside multivitamins and other supplements largely regarded as safe,” even though there had been a number of reported instances of deaths and serious harms resulting from the largely unregulated use of dietary supplements. Id. Modeled after longstanding age restrictions for alcohol and tobacco, which “have been demonstrated to reduce…consumption” of those products by adolescents, the Legislature sought to implement an age restriction for the purchase of dietary supplements used for losing weight or building muscle, to reduce the unsupervised use of these products by minors and, more broadly, to “draw attention to the life-threatening risks that come along with these widely used products.” Sponsor’s Mem. in Supp. for A10138 (2020), at 2. On December 23, 2022, Governor Kathy Hochul vetoed Assembly Bill 431-C (Ex. B, ECF No. 25-2 at 2). She noted that “she shared the concerns of the sponsors of this bill” because of the lack of oversight from the United States Food and Drug Administration over the safety and efficacy of diet pills and dietary supplements, “the concerns about the dangerous ingredients and the links to eating disorders, particularly in young people.” (Id.). She expressed that “[t]his legislation would require the Department of Health (DOH) to determine what products should be limited under this new law.” Id. And, because DOH did not have the expertise necessary to make such assessments, it was “not equipped to create a list of restricted products.” Id. For these reasons she was “constrained to veto this bill.” (Id.). On October 25, 2023, the Legislature enacted A5610, the subject of this action. Ch. 558, 2023 N.Y. Laws. Consistent with the original versions of the law, the Statute provides that no person, company “or other entity shall sell or offer to sell or give away, as either a retail or wholesale promotion,…[a] dietary supplement1 for weight loss or muscle building within this state to any person under eighteen years of age.” Ch. 558, §1, 2023 N.Y. Laws (to be codified at N.Y. Gen. Bus. Law §391-oo(2). As enacted, the Statute defines “dietary supplement for weight loss or muscle building” as “a class of dietary supplement as defined in section three hundred ninety-one-o of this article1 that is labeled, marketed, or otherwise represented for the purpose of achieving weight loss or muscle building.” Gen. Bus. Law §391-oo(1)(a). Exempted from the age-based sales restriction are “protein powders, protein drinks and foods marketed as containing protein unless the protein powder, protein drink or food…contains an ingredient other than protein which would, considered alone, constitute a dietary supplement for weight loss or muscle building.” Id. The Statute also contains a number of provisions clarifying its scope and guiding enforcement. In particular, the Statute states that a supplement is “labeled, marketed, or otherwise represented for the purpose of achieving weight loss or muscle building” where its “labeling or marketing bears statements or images that express or imply that the product will help…modify, maintain, or reduce body weight, fat, appetite, overall metabolism, or the process by which nutrients are metabolized” or “maintain or increase muscle or strength.” Id. §391-oo(6)(b)(i)-(ii). The Statute also directs courts, in enforcement proceedings, to consider whether a dietary supplement contains certain ingredients such as a steroid, or “creatine, green tea extract, raspberry ketone, garcinia cambogia, green coffee bean extract,” or “an ingredient approved by the federal Food and Drug Administration for weight loss or muscle building,” as the inclusion of such ingredients commonly associated with weight loss or muscle building may bring a product within the Statute’s restrictions. Id. §391-oo(6)(a)(i)-(iii). Further, the Statute provides that a dietary supplement may be subject to the age-based sales restriction through the actions of the retailer by “placing signs, categorizing, or tagging the supplement with statements” suggesting that the supplement will impact weight, fat, appetite, metabolism, muscle or strength, or by “grouping the supplements with other weight loss or muscle building products in a display, advertisement, webpage, or area of the store.” Id. §391-oo(6)(d)(i)-(iii). The Statute authorizes the Attorney General, in her discretion, to enforce violations of the Statute through special proceedings in state court. Upon notice to the alleged offender, and if a court finds a violation after considering the enumerated factors set forth in the Statute, the court may issue an injunction and impose a civil penalty of no more than $500 per violation. Id. §390-oo(5). The Statute takes effect on April 22, 2024. Ch. 558, §2, 2023 N.Y. Laws. Plaintiff, Council for Responsible Nutrition, is a nonprofit trade organization that represents various dietary supplement manufacturers and distributors. (AC, ECF No. 44 12.) CRN brings this action against Attorney General Leticia James in her official capacity, seeking declaratory and injunctive relief to prevent enforcement of the Statute. PROCEDURAL HISTORY On March 13, 2024, five months after the Statute was enacted, Plaintiff commenced this action, seeking a declaration that the Statute is facially invalid and an injunction barring the Attorney General from enforcing it. (ECF No. 1.) Three weeks later, on April 3, 2024, Plaintiff made an emergency motion for an order to show cause for a temporary restraining order and a preliminary injunction, seeking immediate relief ahead of the Statute’s effective date. (ECF Nos. 14-25.) On April 4, 2024, the Court denied Plaintiff’s application for a temporary restraining order and directed the Attorney General to respond to Plaintiff’s motion by April 9, 2024. (ECF No. 31.) The Court conducted a hearing on the motion on April 10, 2024, and Plaintiff thereafter amended its complaint to incorporate the additional allegations set forth in the ten declarations that were filed in support Plaintiff’s preliminary injunction motion. (ECF No. 44). Plaintiff and Defendant filed supplemental letter briefing regarding age verification and compelled speech. (ECF Nos. 45, 48). STANDARD OF REVIEW Where, as here, “a preliminary injunction will affect government action taken in the public interest pursuant to a statute or regulatory scheme, the moving party must demonstrate (1) irreparable harm absent injunctive relief, (2) a likelihood of success on the merits, and (3) public interest weighing in favor of granting the injunction.” L.T. v. Zucker, 2021 U.S. Dist. LEXIS 196906, *7 (N.D.N.Y., Oct. 13, 2021) (quoting Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton, 841 F.3d 133, 143 (2d Cir. 2016)). “[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Sussman v. Crawford, 488 F.3d 136, 139 (2d Cir. 2007); see also Anwar v. Fairfield Greenwich Ltd., 728 F. Supp. 2d 462, 472 (S.D.N.Y. 2010) (“Temporary restraining orders and preliminary injunctions are among the most drastic tools in the arsenal of judicial remedies, and must be used with great care.”) (internal citations omitted). DISCUSSION I. CRN Has Alleged Sufficient Facts to Establish Article III Standing. A plaintiff must prove: (1) an injury in fact; (2) that is “fairly traceable” to the actions of the defendant; and (3) redressability in order to establish Article III standing. Tweed-New Haven Airport Auth. v. Tong, 930 F.3d 65, 70 (2d Cir. 2019). To establish Article III standing in the context of a motion for a preliminary injunction, Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011), an association that relies on injuries to individual members to establish its standing must name at least one injured member. As elaborated below, CRN has demonstrated associational standing. Several of CRN’s members are manufacturers or suppliers that sell finished dietary supplements in the State of New York, including through retail operations and other online platforms, and these members are governed by the Statute. (FAC
20-21). CRN has alleged sufficient facts to demonstrate that at least one of its members has standing. See ECF Nos. 19, 22-24. An injury sufficient to satisfy Article III must be “concrete and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) (citations omitted). An allegation of future injury may suffice if the threatened injury is “certainly impending,” or there is a “‘substantial risk’ that the harm will occur.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409, 414 n.5, 133 S. Ct. 1138, 185 L. Ed. 2d 264 (2013) (emphasis and internal quotation marks omitted). “Pre-enforcement challenges to criminal statutes are cognizable under Article III,” as it is well established that a “plaintiff need not first expose [her]self to liability before bringing suit to challenge…the constitutionality of a law threatened to be enforced.” Picard, 42 F.4th at 97 (internal quotation marks and citations omitted). Courts apply a three-prong test to assess the existence of a cognizable injury in fact in the context of pre-enforcement challenges, which requires a plaintiff to demonstrate: (1) “an intention to engage in a course of conduct arguably affected with a constitutional interest”; (2) that the intended conduct is “proscribed by” the challenged law; and (3) that “there exists a credible threat of prosecution thereunder.” Susan B. Anthony List, 573 U.S. at 159 (internal quotation marks and citation omitted). See Nastri v. Dykes, 2024 U.S. App. LEXIS 7445, *2-3 (2d Cir., Mar. 29, 2024) (noting that “[w]hile many pre-enforcement cases involve a threat of criminal prosecution, the fear of civil penalties can likewise be sufficient.”) (internal citation and quotation marks omitted). CRN has satisfied all three elements to establish that it has suffered an injury in fact related to the prospect of the State’s enforcement of the Statute. Defendant argues, inter alia, that CRN fails to allege that its members have any concrete “intention to engage in a course of conduct” prohibited by law, Vitagliano v. County of Westchester, 71 F.4th 130, 137-38 (2d Cir. 2023), that would subject them to a “credible threat” of enforcement, Cayuga Nation, 824 F.3d at 331-32. (Def. Memo. at 6-7). Defendant also suggests that Plaintiff’s seller members have not identified factually specific details to nudge their injuries from the constitutionally impermissible speculative realm to concrete and particularized injuries in fact. (Id.). These claims are without merit. At least one of CRN’s seller members, XYMOGEN, has alleged a certainly impending injury that could very well expose the company to the threat of enforcement. (ECF No. 23
