STATE OF NEW YORK ________________________________________________________________________ 7707--A 2023-2024 Regular Sessions IN ASSEMBLY June 6, 2023 ___________ Introduced by M. of A. WALLACE, RIVERA, LUPARDO -- read once and referred to the Committee on Agriculture -- recommitted to the Commit- tee on Agriculture in accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the general business law, in relation to restricting the retail sale of spices which exceed lead level limits The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The general business law is amended by adding a new article 2 25-D to read as follows: 3 ARTICLE 25-D 4 RETAIL SALE OF SPICES 5 Section 389-u. Definitions. 6 389-v. Restrictions on the retail sale of spices. 7 389-w. Enforcement. 8 389-x. Preemption and severability. 9 § 389-u. Definitions. As used in this article, the following terms 10 shall have the following meanings: 11 1. "Commissioner" shall mean the commissioner of the department of 12 agriculture and markets. 13 2. "Department" shall mean the department of agriculture and markets. 14 3. "Lead" shall mean the element of lead. 15 4. "Retailer" shall mean any person who sells at retail any spice or 16 herb for use as an additive. 17 5. "Retail sale" or "sale at retail" shall mean a sale to a consumer 18 or to any person for any purpose other than for resale. 19 6. "Spice" shall mean any dried aromatic vegetable substances in the 20 whole, broken, or ground form, except for those substances which have 21 been traditionally regarded as foods, whose significant function in food 22 is seasoning rather than nutritional, and from which no portion of any EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11490-03-4A. 7707--A 2 1 volatile oil or other flavoring principle has been removed and includes 2 additional dried plants used as spices such as dehydrated onion and 3 garlic, as well as other dehydrated vegetables used as seasoning. Spices 4 shall be further defined by the following types: 5 (a) "Fruit and berry spices" shall mean spices derived from the flesh 6 of a fruit or berry of a plant and include but are not limited to: (i) 7 capsicums, which include, but are not limited to, chili and paprika; 8 (ii) peppercorns, which include, but are not limited to, white, pink, 9 black, green or other varieties; and (iii) allspice; 10 (b) "Root and rhizome spices" shall mean spices derived from material 11 forming the roots, bulbs or rhizomes of a plant and include, but are not 12 limited to, turmeric, ginger, onion and garlic; 13 (c) "Bark spices" shall mean spices derived from the hard outer cover- 14 ing of a tree or bush and include, but are not limited to, cinnamon; 15 (d) "Bud spices" shall mean spices derived from the buds of plants and 16 include, but are not limited to, cloves; 17 (e) "Leaf spices or herbs" shall mean spices derived from the dried 18 leaves or needles of perennial, biennial, or annual plants and include, 19 but are not limited to, sage, rosemary, thyme, oregano, bay leaves and 20 basil; 21 (f) "Flower pistil spices" shall mean spices derived from the pistil 22 of a flower and include, but are not limited to, saffron; and 23 (g) "Seed and aril spices" shall mean spices derived from the seeds or 24 a hard outer covering or aril around a seed and include, but are not 25 limited to, cumin, mustard, celery, fennel, anise, nutmeg and mace. 26 § 389-v. Restrictions on the retail sale of spices. 1. No retailer 27 shall offer for sale at retail a spice which exceeds the maximum limits 28 for lead set forth below. 29 2. The presence of any lead in any spice offered for sale at retail 30 shall not exceed 0.60 parts per million (ppm) for fruit and berry spic- 31 es, 1.5 ppm for root and rhizome spices, 2 ppm for bark spices, 1 ppm 32 for bud spices, leaf spices and flower pistil spices, and 0.9 ppm for 33 seed and aril spices. 34 3. The department shall be authorized to utilize its enforcement 35 authority to recall spices that exceed the levels set forth in subdivi- 36 sion two of this section. 37 § 389-w. Enforcement. Whenever there shall be a violation of subdivi- 38 sion two of section three hundred eighty-nine-v of this article an 39 application may be made by the attorney general in the name of the 40 people of the state of New York to a court or justice having jurisdic- 41 tion by a special proceeding to issue an injunction, and upon notice to 42 the defendant of not less than five days, to enjoin and restrain the 43 continuance of such violation; and if it shall appear to the satisfac- 44 tion of the court or justice that the defendant has, in fact, violated 45 subdivision two of section three hundred eighty-nine-v of this article, 46 an injunction may be issued by the court or justice, enjoining and 47 restraining any further violations, without requiring proof that any 48 person has, in fact, been injured or damaged thereby. In any such 49 proceeding, the court may make allowances to the attorney general as 50 provided in paragraph six of subdivision (a) of section eighty-three 51 hundred three of the civil practice law and rules, and direct restitu- 52 tion. Whenever the court shall determine that a violation of subdivision 53 two of section three hundred eighty-nine-v of this article has occurred, 54 the court may impose a civil penalty of not more than five hundred 55 dollars for each violation. Each retail sale of a spice contaminated 56 with lead in excess of the maximum limits shall constitute a separateA. 7707--A 3 1 violation. In connection with any such proposed application, the attor- 2 ney general is authorized to take proof and make a determination of the 3 relevant facts and to issue subpoenas in accordance with the civil prac- 4 tice law and rules. 5 § 389-x. Preemption and severability. 1. In the event that the federal 6 government whether by statute or regulation has established a maximum 7 limit of lead in spices sold at retail, such limit shall supersede the 8 provisions of this article and shall apply on and after the effective 9 date of such change. Provided, however, that unless and until such 10 adoption, the maximum limit established in this article shall govern, 11 and any provision of any local law, ordinance or any rule or regulation 12 promulgated by the department shall upon the effective date of this 13 section be preempted. Nothing in this section shall be construed to 14 restrict a municipality from enforcing the provisions of this subdivi- 15 sion as it relates to inspection or monitoring of food safety as 16 required by the commissioner or the department. 17 2. If any provision of this article or the application thereof to any 18 person or circumstance is held unconstitutional, such invalidity shall 19 not affect other provisions or applications of this section which can be 20 given effect without the invalid provision or application, and to this 21 end the provisions of this section are severable. 22 § 2. This act shall take effect one year after it shall have become a 23 law. Effective immediately, the addition, amendment and/or repeal of any 24 rule or regulation necessary for the implementation of this act on its 25 effective date are authorized to be made and completed on or before such 26 effective date.