Case: Council For Responsible Nutrition v. Letitia James, in Her Official Capacity as New York Attorney General, No. 25-1145
Lower Court: Second Circuit
Docketed: 2026-04-02
Status: Pending
Question Presented: 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 wit...
On March 30, 2026, the Council for Responsible Nutrition filed a petition for certiorari asking the Court to address how the Central Hudson intermediate scrutiny test applies to state restrictions on dietary supplement marketing. Counsel Michael B. de Leeuw argues that the Second Circuit approved New York’s law without requiring the empirical showing that Central Hudson and its progeny demand.
The underlying dispute concerns N.Y. Gen. Bus. Law §391-oo, enacted in 2023, which prohibits selling to minors any dietary supplement “labeled, marketed, or otherwise represented” for weight loss or muscle building. The Council challenged the law as an unjustified content-based restriction on commercial speech, and the Second Circuit upheld the statute.
The petition identifies two specific points of conflict with other circuits. First, the petitioner contends the Second Circuit allowed prong three of Central Hudson to be satisfied without concrete evidence that the speech restriction would actually and materially reduce harm. Second, the petitioner argues the court gave undue deference to the legislature on prong four, bypassing meaningful consideration of less speech-restrictive alternatives. The Fourth, Fifth, Sixth, Ninth, and Tenth Circuits, the petition asserts, apply a more demanding standard on both points. That circuit split gives the Court a concrete reason to grant review.
The case matters because the rigor of Central Hudson review has practical consequences for a wide range of product marketing regulations. If intermediate scrutiny can be satisfied through legislative judgment alone, without independent evidentiary support, the commercial speech doctrine loses much of its bite. The respondent's response to this petition is due by May 4, 2026.