Cozen O’Connor Appellate Team Petitions U.S. Supreme Court on Important First Amendment Issue

NEW YORK, April 30, 2026 - On March 30, Cozen O'Connor filed a petition for certiorari at the U.S. Supreme Court on an important First Amendment issue on behalf of our client, the Council for Responsible Nutrition (CRN), in its litigation against the state of New York - Council for Responsible Nutrition v. James.

The case involves a New York Statute that directly infringes on "commercial speech," which is protected by the First Amendment. Several years ago, the New York legislature wanted to pass a law to ban specific dangerous or illegal ingredients (or drugs) that some unscrupulous companies were supposedly putting in some dietary supplements that were supposedly used for "weight loss" or "muscle building." The Governor of New York vetoed that law because she believed that New York did not have the resources or expertise to identify those dangerous or illegal ingredients. So instead, the New York legislature passed a law that prohibits minors from purchasing certain dietary supplements that are "marketed" or "advertised" for "weight loss" or "muscle building." That law is a content-based restriction that does not accomplish what the legislature wanted it to do and violates the First Amendment rights of dietary supplement companies and retail stores to make truthful and accurate statements about the products that they make and sell.

To be clear, CRN's members are committed to responsibly and legally manufacturing FDA-compliant dietary supplements. Moreover, CRN strongly supports the protection of minors from dangerous ingredients. But CRN believes that the way to accomplish that goal is to pass a law (like the original New York law) that restricts the purchase of actual specific dangerous ingredients or products. Such restrictions would have properly targeted adulterated products that violate FDA requirements, impacting bad actors, not responsible companies like CRN members.

Because the statute infringes on protected commercial speech, CRN challenged the statute on First Amendment grounds prior to it going into effect, arguing that:

1. the government failed to meet its burden of demonstrating - through actual data and evidence - that restricting that speech would directly and materially advance a substantial government interest, and
2. that the government failed to demonstrate that the restriction was narrowly-tailored.

CRN's case is an appeal from the Second Circuit, which significantly watered down the protections that are in place to protect commercial speech.

Forty-five years ago, the Supreme Court, recognizing that commercial speech is protected under the First Amendment, established the "Central Hudson" test, which places the burden on the government to justify any infringements on commercial speech. This burden requires the government to present actual evidence that the infringement will - in fact - address a specific government concern. It also requires that any infringement on commercial speech be "narrowly-tailored" so as not to restrict more speech than necessary, and this requires courts to consider whether the legislature considered alternate approaches were either did not infringe on speech or infringed on less speech.

Instead of applying this test with the rigor that the Supreme Court has demanded, the District Court and then the Second Circuit gave wide deference to the New York legislature and affirmed the statute without requiring that the government meet its strict burden under the Central Hudson test.

This decision conflicts with Supreme Court precedent and deepened a circuit split with its sister circuits on the application of the Central Hudson test. CRN's petition for certiorari presents the Supreme Court with the opportunity to clarify that the government can only regulate commercial speech if it meets its full constitutional burden under the Central Hudson.

Members of this team (Michael de Leeuw and Tamar Wise) successfully litigated a First Amendment challenge to the Supreme Court in Manhattan Community Access Corporation v. Halleck. In June 2019, the Supreme Court reversed the U.S. Court of Appeals for the Second Circuit and held that a private company that, among other things, operates the public access channels in Manhattan, was not a "state actor" and therefore not subject to liability under the First Amendment.