Ch. ATCP 40 Note
Note: Chapter ATCP 40 as it existed on September 30, 2005 was repealed and a new chapter ATCP 40 was created effective October 1, 2005.
This chapter has the following purposes:
To protect Wisconsin consumers, including farmers and household users, against unfair and deceptive practices in the sale of fertilizers or soil or plant additives.
To protect honest businesses against unfair and deceptive methods of competition.
To prevent certain hazards to persons, property and the environment.
ATCP 40.01 Note
See s. 94.64
, Stats. (fertilizer), s. 94.65
, Stats. (soil or plant additives), s. 100.18
, Stats. (fraudulent representations), s. 100.37
, Stats. (hazardous substances), s. 100.42
, Stats. (product safety) and ch. ATCP 139
(consumer product safety).
ATCP 40.01 History
History: CR 04-140
: cr. Register September 2005 No. 597
, eff. 10-1-05.
In this chapter:
"Active ingredient" means an element, chemical compound or other substance that affects the efficacy, usefulness or performance of a fertilizer or soil or plant additive. "Active ingredient" includes all of the following:
Any other component declared, or required to be declared under this chapter, as an active ingredient on the product label.
"Bulk fertilizer" or "bulk soil or plant additive" means a fertilizer or soil or plant additive that is distributed in unpackaged form, or in a container that holds more than 55 gallons of liquid or 100 lbs. of dry material.
"Combination product" means any of the following:
A fertilizer or soil or plant additive combined with liming material.
"Custom mixed fertilizer" means a fertilizer that a manufacturer mixes for a retail customer according to individual specifications provided by the retail customer.
"Department" means Wisconsin department of agriculture, trade and consumer protection.
"Distribute" means to import, consign, sell, offer for sale, solicit orders for sale, or supply for sale or use in this state. "Distribute" does not include the sale or delivery of manure represented only as manure, by the person who owns or operates the farm that produces the manure, for application on any of the following:
"Enhancing element" means aluminum, cobalt, selenium, silicon or sodium.
"Fertilizer" means any substance that contains one or more plant nutrients, is used for its plant nutrient content, and is designed for use or claimed to have value in promoting plant growth. "Fertilizer" includes agricultural and nonagricultural fertilizers, fertilizer materials, mixed fertilizers, custom mixed fertilizers, and combination products containing fertilizer. "Fertilizer" does not include unmanipulated animal or vegetable manure, marl, liming material, wood ashes, or sewage sludge other than finished sewage sludge products.
"Fertilizer-additive combination" means a fertilizer combined with a soil or plant additive, or a fertilizer that is represented as having plant growth benefits beyond those attributable to the fertilizer's plant nutrient contents. "Fertilizer-additive combination" includes a fertilizer that is represented to contain enhancing elements other than cobalt or sodium.
"Fertilizer material" means a substance that meets all of the following criteria:
It is an element, a chemical compound, or a substance manufactured by chemical reaction.
It is a fertilizer component or is used to compound fertilizer.
"Fertilizer-pesticide combination" means a fertilizer combined with a pesticide.
ATCP 40.02 Note
Note: For example, "weed and feed" products are fertilizer-pesticide combinations.
"Finished sewage sludge product" means a product, consisting partly or entirely of sewage sludge, that has been disinfected or treated to facilitate sale or distribution. "Finished sewage sludge product" does not include sewage sludge distributed under a pollutant discharge elimination permit issued by the department of natural resources under s. 283.31
"Foliar fertilizer" means a fertilizer designed or labeled for direct application to plant foliage and intended for absorption through the plant's foliage.
"Grade" means the percentage guarantees of total nitrogen (N), available phosphate (P2O5) and soluble potash (K2O), stated in the same terms, order and percentages as in the guaranteed analysis.
"Guaranteed analysis" means the guaranteed percentage content by weight of each plant nutrient, active ingredient and inert ingredient, stated according to s. ATCP 40.10
. For microbiological ingredients in a soil or plant additive, "guaranteed analysis" means the number of viable microorganisms or colony forming units per unit of dry weight or per unit of liquid volume.
"Inert ingredient" means a component that does not affect product efficacy or performance.
"Label" means a written, printed, graphic or pictorial statement that is one of the following:
Part of, or attached to, a package containing fertilizer or a soil or plant additive.
Used to identify, for distribution or storage, a bulk fertilizer or a bulk soil or plant additive.
"Labeling" means labels and other written, graphic or pictorial statements that accompany a fertilizer or a soil or plant additive, or that promote the sale or distribution of fertilizer or soil or plant additives. "Labeling" includes advertising and website materials that promote the sale or distribution of a fertilizer or soil or plant additive.
"Manipulated manure" means manure that is ground, pelletized, mechanically dried, packaged, supplemented with plant nutrients or other substances, or otherwise treated in a manner designed to facilitate sale or distribution as a fertilizer or soil or plant additive. "Manipulated manure" does not include unpackaged manure that is modified solely as an incidental result of normal on-farm practices such as the following:
Addition of bedding, sand or water for purposes of animal husbandry or barn cleaning.
Shredding, grinding or agitating for purposes of manure handling or removal from a manure storage system.
Drying incidental to mechanical ventilation of animal confinement areas.
To process, granulate, compound, formulate, produce, mix, blend, or alter the composition of a fertilizer, fertilizer material, or soil or plant additive for distribution.
To package or label, for distribution, a fertilizer, fertilizer material, or soil or plant additive.
"Micronutrient" means boron, chlorine, copper, iron, manganese, molybdenum, nickel, or zinc.
"Mixed fertilizer" means a fertilizer containing any combination or mixture of fertilizer materials, or a fertilizer material and any other substance. A fertilizer material containing impurities inherent in the manufacture of that fertilizer material does not constitute a "mixed fertilizer" unless the distributor claims that the impurities are plant nutrients, fertilizer materials or soil or plant additives.
"Nonagricultural fertilizer" means a fertilizer designed, labeled and distributed for non-farm use, including use for home gardens, lawns, shrubbery, flowers, golf courses, parks, cemeteries, greenhouses, nurseries, or scientific research or experimentation.
"Packaged fertilizer" means a fertilizer that is sold in a closed package or container. "Packaged fertilizer" includes packaged custom mixed fertilizer.
"Packaged soil or plant additive" means a soil or plant additive that is sold in a closed package or container.
"Percent" or "percentage" means percentage by weight.
"Pesticide" has the meaning given in s. 94.67
, Stats. "Pesticide" includes a fertilizer-pesticide combination and a pesticide-additive combination.
"Pesticide-additive combination" means a pesticide combined with a soil or plant additive.
"Plant nutrient" or "nutrient" means any of the following:
"Primary plant nutrient" means nitrogen (N), available phosphate (P2O5) or soluble potash (K2O).
"Product" means a fertilizer or a soil or plant additive.
"Product name" means a name, designation or trademark that identifies a product.
"Ready-to-use liquid fertilizer" means a liquid fertilizer that is designed and labeled to be applied without prior mixing or dilution by the user.
"Represent" means to state or imply by any means, including any oral, written, graphic or broadcast means.
"Scientific evidence" means evidence that is logically derived from controlled experiments designed, conducted and reported according to the scientific method, using relevant experimental and statistical analytical procedures that are generally recognized and defensible as valid and appropriate among peers in the relevant scientific community. Testimonials are not "scientific evidence."
"Secondary plant nutrient" means calcium, magnesium or sulfur.
"Sewage sludge" means the solid, semi-solid or liquid residue generated during the treatment of sewage in a treatment works. Sewage sludge includes scum or solids recovered in primary, secondary or advanced wastewater treatment processes, and also includes material derived from sewage sludge. Sewage sludge does not include ash generated during the firing of a sewage sludge incinerator, or grit or screenings generated during preliminary treatment of domestic sewage in a treatment works.
"Soil or plant additive" or "additive" means a substance, intended for application to seeds, soil or plants, that is designed for use or claimed to have value in promoting or sustaining plant growth, improving crop yield or quality, promoting or sustaining the fertility of soil, or favorably modifying the structural, physical or biological properties of the soil for agronomic or horticultural purposes. "Soil or plant additive" includes a combination product containing a soil or plant additive, and also includes any product represented to contain humate, humin, humic acid, fulvic acid or other humic substances. "Soil or plant additive" does not include any of the following:
Fertilizer, other than a fertilizer-additive combination. A fertilizer is not considered a fertilizer-additive combination merely because its guaranteed analysis includes guarantees under s. ATCP 40.10
for cobalt or sodium.
Liming material that is distributed solely for the purposes stated in s. 94.66 (1) (am)
, Stats., and is not part of a combination product.
Wood ashes, unmanipulated animal manure or unmanipulated vegetable manure. This exemption does not apply to wood ashes or manure distributed under another name or description.
Perlite labeled as perlite, or vermiculite labeled as vermiculite, that is not mixed with any other substance.
Potting soil or similar mixtures of readily identifiable organic substances, unless labeled with performance claims associated with its use as a soil amendment.
Compost, peat moss, tree bark, wood shavings, and other readily identifiable organic substances that are commonly applied to soil, provided that all the following apply:
The substance is distributed under its common name. Composts must identify the material composted, such as animal manure, yard waste or urban refuse.
The product labeling does not make performance claims related to plant growth, plant health, crop yield or soil fertility.
Seed, labeled according to ch. ATCP 20
, that has been treated or coated with a soil or plant additive. This exemption does not apply to any of the following:
Substances, containing seeds or seed parts, that are sold as soil or plant additives.
An adjuvant sold only to improve the mixing, handling or application of fertilizers or pesticides. This exemption does not apply if a distributor makes any other benefit claims for the adjuvant, other than a precautionary written statement on the product label that says the adjuvant may increase the contact effects of products applied with it.