New Jersey Bill Proposes Ban on OTC Weight Loss Supplements for M

As the dietary supplement industry continues to attract the attention of Congress, state attorneys general and class action lawyers, now comes another federal law that seeks to ban the sale of over-the-counter (“OTC”) dietary supplements aimed at weight loss and muscle building to minors – this time in New Jersey.

On October 28, 2024, the New Jersey General Assembly passed Bill No. 1848 by a vote of 56-17 with four abstentions, which, if enacted, will prohibit the sale or delivery of OTC diet pills. Weight loss and muscle building supplements for minors, unless the minor is accompanied by a parent or guardian. Bill No. 1848 is an example of efforts to combat the misuse and misuse of these products, as well as the possible causal relationship between these dietary supplements and eating disorders. Violators, including retail employees, may face a civil penalty not exceeding $750.

The legislation establishes the following:

“No person, company, corporation, partnership, association, limited liability company or other legal entity may sell, offer for sale or advertise any non-prescription dietary supplement product, whether directly or indirectly through an agent or employee Weight loss or muscle building to minors under 18 years of age, unless the minor is accompanied by a parent or legal guardian.”

Additionally,

“No person shall complete a delivery (of any such pill or dietary supplement) to a residence in this state without first obtaining… the signature of a person who is at least 18 years of age and resides in such residence.”

The ban does not apply to products prescribed by a licensed healthcare professional. Other exceptions concern postal service employees; those who were presented with false identification upon sale or delivery; or news media that accepts or publishes advertising for an OTC diet pill or dietary supplement for weight loss or muscle gain. Factors to consider when assessing which OTC dietary supplements fall within the scope of the Act include, but are not limited to, whether the pill or dietary supplement contains: a drug approved by the Federal Food and Drug Administration (“FDA”) ingredient approved for weight loss and muscle building; a steroid or various extracts; or whether the label, advertising or other representations indicate that the product is useful for these purposes.

Despite overwhelming support for the legislation at the Assembly level, Bill 1848 has faced criticism from groups such as the Council for Responsible Nutrition (“CRN”) and the Natural Products Association (“NPA”), which is blocking similar proposals in California have. Colorado, Massachusetts, Rhode Island, Missouri and Illinois, as discussed in a Sept. 23 NPA news release. Meanwhile, the CRN sought to pass a similar New York law in spring 2024. While the request for an injunction was denied, CRN has appealed the denial and the lawsuit remains pending. Opponents argue that laws focused on these bans ignore science and actually harm public health, limit consumer access and impose a significant burden on retailers. Additionally, opponents claim that the FDA has no data linking weight management and muscle-building supplements to eating disorders, as advocates have claimed.

Bill No. 1848 targets the same products listed in a recent New York bill A.5610/S.5823 signed by Governor Kathy Hochul in October 2023. By redefining a dietary supplement based on how the product is labeled, marketed, or marketed. In other words, both the recently enacted New York law and the upcoming New Jersey law conflict with how the Federal Food, Drug and Cosmetic Act ( “FDCA”) defines a “diet supplement.” This makes it very difficult for companies that sell dietary supplements to determine which products are subject to the law and which are not.

Although Bill 1848 is currently before the New Jersey State Senate for further consideration, analysis of the bill rates it as “much more likely to pass” due to overwhelming support at the Assembly level.

Comments on Parliamentary Act No. 1848 highlight ongoing confusion over the safety of dietary supplements. The use of dietary supplements is widespread in the United States, but the idea that dietary supplements are unsafe because they are not tested by the FDA before marketing is widespread in society. On the contrary, as trade associations continue to advocate, the industry is well regulated by the FDA and there is substantial evidence that dietary supplements provide benefits to consumers.

The NPA notes that the FDCA specifically requires manufacturers and distributors to inform the FDA of ingredients and the basis on which the manufacturer or distributor concluded that the dietary supplement is likely to be safe under the conditions of use suggested in the labeling is ; and that the FDA has the authority to remove products from the market that could potentially pose a threat to public health. The FDA also has a dietary supplement adverse event reporting system.

Despite these regulations, states use their powers to do what lawmakers deem appropriate to protect their underage voters. However, it remains to be seen exactly how the possible confirmation of Robert F. Kennedy Jr. as head of the Department of Health and Human Services will affect regulation in this area. RFK reportedly opposes the FDA’s suppression of various products and therapies, prompting some in the dietary supplement industry to advocate for his nomination.