N.Y. Agriculture & Markets Law § 202-c: Proceedings to review, violations and remedies

§ 202-c. 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.