New York Agriculture & Markets Law
Proceedings to Review, Violations and Remedies
The commissioner may refuse to approve any new food additive or color additive or combination thereof or new use of a pre-existing food additive or color additive on the ground that he is not satisfied as to its safety. The burden of satisfying the commissioner as to the safety of a food additive or color additive shall be upon the manufacturer or processor selling or offering or exposing the food additive or color additive or food product in which a food additive or color additive was used or is an ingredient. Whenever the commissioner is not satisfied as to the safety of a food additive or color additive or whenever he makes any decision (a) prohibiting the use of a food additive or color additive as unsafe;
(b) prescribing the conditions under which it may be used or establishing a safe, permissible maximum for such food additive or color additive, his decision with respect thereto may be reviewed in the manner provided by article seventy-eight of the civil practice law and rules and his determination shall be final unless within thirty days from the date of service thereof personally or by registered or certified mail upon the party affected thereby a court proceeding is instituted to review such action. Such application shall be made to the supreme court in the third judicial district. The commissioner may institute such action at law or in equity as may appear necessary to enforce compliance with sections one hundred ninety-nine-a, two hundred and two hundred one of this article, and any rule or order respecting a food additive or color additive promulgated pursuant to sections one hundred ninety-nine-b and two hundred fourteen-b of this article and, in addition to any other remedy under this chapter or otherwise, may apply for relief by injunction to protect the public interest without being compelled to allege or prove that an adequate remedy at law does not exist. In an action instituted by the commissioner to enforce compliance with said sections one hundred ninety-nine-a, two hundred and two hundred one the commissioner shall not be required to prove that the food, food additive or color additive mentioned in the complaint is unsafe and the claim or defense of the defendant as to its safety shall be immaterial, provided, however, that the recognition by the federal food and drug administration of a food additive or color additive as safe may be alleged as a proper defense.