Theodora McCormick, Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm’s Princeton and Newark offices, was quoted in Natural Products Insider, in “‘Vague’ NY Law Looms for the Vitamin Shoppe, Other Supplement Retailers,” by Josh Long.

Following is an excerpt:

Thirteen days is how long distributors, manufacturers and retailers of dietary supplement products have to get ready for a New York law that takes effect on April 22.

That is unless either of two industry trade associations succeed in convincing a U.S. District Court to grant a preliminary injunction blocking implementation of the law.

New York Assembly Bill A5610 restricts minors’ access to weight loss and muscle-building supplements.

A telephone conference is scheduled for tomorrow (April 10) in the Southern District of New York on the Council for Responsible Nutrition’s (CRN) request for a preliminary injunction, according to court documents. U.S. District Judge Andrew Carter on April 4 denied CRN’s request for a temporary restraining order and ordered that the New York attorney general show cause why he should not enjoin the state AG from enforcing the law (New York Assembly Bill A5610) during the pendency of the lawsuit. …

New Jersey-based industry lawyer Theodora McCormick of Epstein, Becker & Green P.C. said the retailers she has talked to are closely evaluating their products to determine whether they are marketed for weight loss and muscle building. In addition, retailers are requesting indemnification from their suppliers for products that inadvertently violate the law, she said.

“They’re also working on procedures for verifying the age of individuals purchasing covered products,” McCormick added in an interview. “For brick-and-mortar stores, that’s probably not terribly complicated. It involves more training and that sort of thing, but it’s more involved for sales that are delivered or purchases online. There’s a process in place for selling to consumers who are 21 or older, but not for 18 so that’s something that’s going to have to be developed."

McCormick ... said retailers could benefit if the New York AG issued guidance to clarify the scope of products covered under the law. The state AG hasn’t responded to previous requests for comment concerning the litigation or potential guidance.

The state AG should issue guidance and “it’s something that I think either NPA or CRN can press for in the suits that they’ve filed,” McCormick said. While guidance wouldn’t resolve the entire litigation, McCormick noted what she found “really compelling about both lawsuits is just how vague the statute is and how difficult it is for the industry to comply with it.”

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