The NPA's complaint alleges that as a New York state regulation, enforcement of the age-restricted sales law falls under a separate NY General Business Law section granting right of action to consumers in addition to state authorities’ right.

Under Sec. 349 of the state law, “any person who has been injured by reason of any violation of this section may bring an action in his own name to enjoin such unlawful act or practice, an action to recover his actual damages or fifty dollars, whichever is greater, or both such actions,” according to the complaint.

However, 21 USC Sec. 337(a) prohibits private enforcement of any of its provisions, limiting “proceedings for the enforcement, or to restrain violations” of the FD&C Act to federal action, the complaint states.

NPA Complaint For Preemption Argues New York Swings Wildly With Age-Restricted Sales Law

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