The department, after public hearing, may establish standards for the grade of food products and farm products and for receptacles therefor and may prescribe regulations governing the marks or tags which may be required upon food products or farm products or upon receptacles therefor, for the purpose of showing the name, address or serial number of the person producing or marketing the product or receptacle, the grade of the product or receptacle, the quality, quantity, type, variety, size, weight, dimensions or shape of the product or the quality, type, size, weight, content, dimensions or shape of the receptacle.
No standard or regulation under this section, which is repugnant to any requirement made mandatory under federal law, shall apply to products or receptacles which are being shipped from the state in interstate commerce.
No standard shall apply to products or receptacles coming from outside the state but such products or receptacles may be required to be marked or tagged to indicate that they came from outside the state and to show any other fact regarding which marking or tagging may be required under this section; provided, that such products or receptacles, at the time when marking or tagging is required, have ceased to be in interstate commerce.
No standard established under this section for the grade of any food product or farm product shall affect the right of any person to dispose of such product without conforming to the standard, but such person may be required to mark or tag such product, in such a manner as the department may direct, to indicate that it is not intended to be marketed as of a grade contained in the standard and to show any other fact regarding which marking or tagging may be required under this section.
No standard or regulation shall be established or prescribed under this section which is in conflict with any standard or regulation contained in or heretofore promulgated under authority of any other statute of the state.
No standard or regulation shall be established or prescribed by the department of agriculture, trade and consumer protection under this section in any case where any other state department, commission or official has authority to establish such a standard or prescribe such a regulation, unless the department of agriculture, trade and consumer protection establishes the standard or prescribes the regulation jointly with such other department, commission or official. No standard or regulation shall be established or prescribed by any other state department, commission or official in any case where the department of agriculture, trade and consumer protection has authority to establish such a standard or prescribe such a regulation under this section, unless such other department, commission or official establishes the standard or prescribes the regulation jointly with the department of agriculture, trade and consumer protection. The governor shall act as arbiter in case of disagreement or conflict of authority between the department of agriculture, trade and consumer protection and any other state department, commission or official under this section.
Whenever any standard or regulation under this section has become effective, no person marketing or having in his or her possession for commercial purposes any product or receptacle to which the standard is applicable shall represent such product or receptacle, unless in a manner authorized by the department, as being of any grade other than a grade contained in such standard, except as to products or receptacles included in subs. (2)
; and no person marketing or having in his or her possession for commercial purposes any product or receptacle to which the standard is applicable shall represent such product or receptacle as being of a grade contained in the standard, when as a matter of fact such product or receptacle is below the requirements of such grade and no person shall market or have in his or her possession for commercial purposes any product or receptacle unless the marking or tagging thereon conforms to the regulation prescribed under this section; and no person shall market or have in his or her possession for commercial purposes any product or receptacle, to which any such marking or tagging regulation is applicable, if such marking or tagging thereon is false or misleading; provided, that representing a product or receptacle as being of a grade contained in the standard, when as a matter of fact such product or receptacle is below the requirements of such grade, shall not be a violation of this section, if the product or receptacle bears the official certificate of an inspector licensed under s. 93.11
; provided, further, that possession, under this section, shall not include possession by a carrier or other bailee.
Whenever the department finds that any person marketing or having in his or her possession any product or receptacle to which the standard is applicable has intentionally violated sub. (8)
, the department, after opportunity for hearing has been given such person, may, by special order, revoke the right of such person to represent any product or receptacle to which the standard is applicable as being of any grade contained in the standard and may, in said order, require such person to mark or tag such product or receptacle as provided in sub. (4)
. The department may, without hearing, suspend such right for a period not exceeding ten days, pending investigation. The department may restore such right to any person from whom it has been revoked, where the person gives satisfactory evidence warranting such restoration.
Whenever any standard is established under this section the department, by regulation, may require any person marketing products or receptacles to which such standard is applicable to secure a permit and pay uniform fees to the department sufficient to cover the cost of the supervision of the grading and inspection provided for in the standard.
History: 1977 c. 29
s. 1650m (4)
; 1993 a. 492
Inspector's certificate. 93.10(1)
The department, as a means of enforcing the standard for the grade of any food product or farm product or for any receptacle therefor, may, by general order, after public hearing, require any such product or receptacle to bear the official certificate of an inspector licensed under s. 93.11
Whenever the department has required any product or receptacle to bear the official certificate of an inspector licensed under s. 93.11
, no person marketing or having in his or her possession for commercial purposes any such product or receptacle shall remove, mutilate or alter the official certificate thereon or represent such product or receptacle, unless in a manner authorized by the department, as being of any grade other than the grade designated by the official certificate thereon, except as to products or receptacles included in s. 93.09 (2)
; and no person shall market or have in his or her possession for commercial purposes any such product or receptacle unless such product or receptacle bears the official certificate of an inspector licensed under s. 93.11
, except as to products or receptacles included in s. 93.09 (2)
; provided, that such a product or receptacle may be marketed or had in possession without an official certificate issued at the point of shipment if such product or receptacle is destined for shipment to a point within the state, where the shipper has arranged for the issuance of an official certificate; provided, further, that possession under this section, shall not include possession by a carrier or other bailee.
History: 1993 a. 492
Licensing of inspectors. 93.11(1)
The department, upon presentation of satisfactory evidence that the applicant is competent, may issue a license to any person to certify the grade of food products or farm products or of receptacles therefor, for which standards have become effective under s. 93.09
. The purpose of such certification may be either to enforce the standard or merely to furnish to an interested party an official statement of the grade. A certificate issued under this section, unless superseded by a finding as provided in sub. (4)
, shall be accepted in any court of this state as prima facie evidence of the facts to which the certificate relates.
Applications for a license, or any renewal of a license, shall be submitted on forms prescribed by the department and be accompanied by a fee of $25. All licenses, unless sooner rescinded or revoked, shall expire on September 30 of the 2nd year commencing after the date of issuance or renewal. As a condition to the issuance or renewal of a license, applicants shall demonstrate to the satisfaction of the department their competency to act as an inspector by education, training, experience or examination as the department requires.
The department may (by general order, after public hearing) fix and cause to be collected a reasonable, uniform fee for certification where necessary for the adequate enforcement of an order issued under s. 93.10
. The department shall fix and cause to be collected a reasonable, uniform fee for certification where the purpose of such certification is merely to furnish to an interested party an official statement of the grade.
Any person affected by a certification made under this section may appeal to the department from such certification within a reasonable time to be prescribed in regulations issued by the department. The department shall thereupon make an investigation to determine the true grade of the product or receptacle and shall issue a finding thereof. Such a finding shall be accepted in any court of this state as prima facie evidence of the facts to which the finding relates.
The department shall charge and collect a reasonable fee for any appeal taken under this section but shall refund such fee if the appeal is sustained.
The department, after opportunity for hearing has been given the licensee, may, by special order, revoke any license issued under this section, whenever the department finds that such licensee is incompetent or has made material false statements in order to obtain a license or has knowingly or carelessly issued any false or improper certificate of grade or has accepted money or other consideration, directly or indirectly, as compensation for any neglect or improper performance of duty or has violated chs. 93
or any regulation made thereunder. The department may, without hearing, suspend such right for a period not exceeding ten days, pending investigation. The department may restore the license of any person whose license has been revoked, where the person gives satisfactory evidence warranting such restoration.
No person shall certify or attempt to certify that the grade of any food product or farm product or of any receptacle therefor conforms or does not conform to the standard established under s. 93.09
, unless such person holds an unrevoked and unsuspended license issued under this section. No person shall influence or attempt to influence any licensee to neglect or improperly perform the licensee's duty. No licensee shall knowingly issue any false or improper certificate of grade or accept money or other consideration, directly or indirectly, as compensation for any neglect or improper performance of the licensee's duty.
(8) Chapter 230
shall not apply to inspectors licensed under this section who receive no salary or are handled merely upon a fee basis.
Laboratories, approval of. 93.12(1)
It is the purpose of this section to assure the reliability and quality of manual and automated laboratory examinations made for the protection of the health of the public.
Any laboratory that is established and operated to perform bacteriological or microscopic examinations of milk, water and food products for the purpose of protecting the health of the public shall apply to the department for an evaluation of the examinations and appropriate certification.
The department shall designate which laboratory examinations it deems necessary for the protection of the health of the public. Substantial failure of any laboratory to show evidence of quality control procedures, sufficient to comply with current standards and practice as prescribed by the department, shall result in denial or revocation of the certificate of approval. The department shall provide for consultation on laboratory methods and procedures.
The department, after conducting an evaluation for each specialty area and after receiving a fee for each specialty area from the laboratory, shall issue a certificate of approval to the laboratory covering those examinations which have met the minimum standards established by the department. The department shall issue an interim certificate of approval for an approved laboratory that applies for initial certification, which shall be valid for the remainder of the calendar year for which it is issued. Certification renewals shall be issued on a calendar-year basis. Specialty fees for certification of an initially certified laboratory and a certified laboratory that applies to expand its current certification with newly established specialties shall be prorated at one-twelfth of the annual fee for each month remaining in the calendar year for which the certificate of approval is issued. A certificate of approval shall be revoked by the department if the minimum standards established by the department for certification are not met within 2 successive evaluations. Fees collected under this subsection shall be credited to the appropriation under s. 20.115 (1) (gb)
The department shall establish uniform minimum standards to be used in the evaluation and certification of laboratory examinations. The department shall submit any rules proposed under this subsection which affect the laboratory certification program under s. 299.11
to the department of natural resources and to the state laboratory of hygiene for review and comment. These rules may not take effect unless they are approved by the department of natural resources within 6 months after submission.
Laboratories required to apply to the department under sub. (2)
shall not operate without a certificate of approval. Any lab which operates without a certificate of approval shall be fined not less than $100 nor more than $1,000. Each day such violation continues shall constitute a separate offense.
The department shall promulgate rules establishing a fee schedule to offset the cost of the certification of laboratories and the collection of fees under sub. (4)
The department shall enter into a memorandum of understanding with the department of natural resources setting forth the responsibilities of each department in administering the laboratory certification programs under sub. (5)
and s. 299.11
. The memorandum of understanding shall include measures to be taken by each department to avoid duplication of application and compliance procedures for laboratory certification.
The department shall recognize the certification or registration of a laboratory by the department of natural resources under s. 299.11
and shall accept the results of any test conducted by a laboratory certified or registered to conduct that category of test under that section.
Power to conduct hearings; secure evidence; witness fees. 93.14(1)(1)
The department or any of its authorized agents may, in relation to any matter within the department's power, conduct hearings, administer oaths, issue subpoenas and take testimony.
The witnesses and officers who subpoena them shall be entitled to the fees allowed in courts of record. Such fees shall be audited and paid by the state in the same manner as other expenses of the department are audited and paid. No witness subpoenaed at the instance of any party other than the department shall be entitled to payment of fees by the state, unless the department certifies that the testimony of such witness was material.
Any person who shall unlawfully fail to attend as a witness or refuse to testify may be coerced as provided in s. 885.12
A record of all hearings shall be kept in the office of the department. All hearings shall be public.
Reports to department; inspections. 93.15(1)
The department may, by general or special order, require persons engaged in business to file with the department, at such time and in such manner as the department may direct, sworn or unsworn reports or sworn or unsworn answers in writing to specific questions, as to any matter which the department may investigate.
The department or any of its authorized agents may have access to and may copy any document, or any part thereof, which is in the possession or under the control of any person engaged in business, if such document, or such part thereof, is relevant to any matter which the department may investigate.
No person shall refuse or fail to render any report or answer required under this section at such time and in such manner as the department may prescribe. No person shall refuse, neglect or fail to submit, for the purpose of inspection or copying, any document demanded under this section. No person shall wilfully make any false entry or statement in any report or answer required or document demanded under this section. No person shall wilfully fail to make full and true entries and statements in any report or answer required or document demanded under this section. No person shall, for the purpose of embarrassing the department in the conduct of any investigation, hearing or proceeding, remove out of the state or mutilate or alter any document. No person shall, except through judicial process, resist or obstruct any official or subordinate of the department in the exercise of the official's or subordinate's lawful authority.
History: 1993 a. 492
A warrantless inspection of a dairy farm under authority of ss. 93.08, 93.15 (2), 97.12 (1) and related administrative rules made without prior notice and without the owner being present was not unconstitutional. Because the administrative rules govern operations, equipment and processes not typically conducted in residential areas, the rules and statutes sufficiently preclude making warrantless searches of residences. Lundeen v. Dept. of Agriculture, 189 W (2d) 255, 525 NW (2d) 758 (Ct. App. 1994).
Preliminary investigation. 93.16(1)
The department may, at any time, conduct such preliminary investigation as is necessary and proper to determine whether a hearing or proceeding ought to be begun under the provisions of this chapter.
The authority contained in ss. 93.14
may be used in the conduct of such preliminary investigation.
Immunity; perjury. 93.17(1)(1)
Except as to a hearing or proceeding under s. 93.06 (3)
or as to an investigation preliminary thereto, no person may be excused from testifying or rendering a report or answer or producing or submitting a document, in response to a demand made under s. 93.14
, upon the ground or for the reason that the testimony or report or answer or document required of him or her may tend to incriminate him or her or subject him or her to a penalty or forfeiture; but no natural person may be prosecuted or subjected to any penalty or forfeiture for or on account of testifying or rendering a report or answer or producing or submitting a document, in response to a demand made under s. 93.14
, and no testimony so given or report or answer so rendered or document so produced or submitted may be received against him or her in any criminal action, investigation or proceeding; provided, that no natural person so testifying may be exempt from prosecution and punishment for perjury committed by him or her in so testifying or for misrepresentation or concealment committed by him or her in so rendering a report or answer or so producing or submitting a document.
The immunity provided under sub. (1)
is subject to the restrictions under s. 972.085
History: 1989 a. 122
Hearings; orders; service; procedure; revocation. 93.18(1)(1)
General orders, standards and regulations shall be adopted, amended and repealed as prescribed in ch. 227
The department, in any matter relating to issuing, revoking or amending a special order relating to named persons, except as provided in sub. (3)
, shall serve upon the person complained against a complaint in the name of the department and a notice of a public hearing thereon to be held not sooner than 10 days after such service. The person complained against shall be entitled to be heard in person, or by agent or attorney and shall be entitled to process to compel the attendance of witnesses.
The department, after acting pursuant to s. 100.37
to order the sale or distribution of any substance, article, furnishing, fabric, product or related material ceased, shall give written notice of its finding to the manufacturer, seller or other person responsible for placing the item in the channels of trade in this state. After such notice no person may sell, remove or otherwise dispose of such item except as directed by the department. Any person affected by such notice may demand a prompt hearing to determine the validity of the department's findings. The hearing, if requested, shall be held as expeditiously as possible but not later than 30 days after notice. A request for hearing does not operate to stay enforcement of the order during the pendency of the hearing. The person petitioning for a hearing shall be entitled to the same rights specified under sub. (2)
The department shall serve a copy of any special order upon the person against whom the order is issued.
Complaint, notice, order or other process of the department may be served as may be a summons, and a subpoena as provided by s. 885.03
, and either may be served by registered mail to an address furnished by the person or concern to either the department or the secretary of state. Service may be proved by affidavit. Service in any event may be also by registered mail addressed to the person or concern and proved by the post-office return receipt, in which case the time of service is the date borne by the receipt.
The testimony presented and the proceedings at hearings shall be taken by a stenographic reporter or otherwise recorded and when necessary shall be transcribed. The secretary shall make his or her findings and determination thereon. The department shall make rules of procedure and practice not inconsistent with any law governing such procedure or practice.
History: 1975 c. 117
; 1993 a. 492
Enforcement costs. 93.20(1)(1)
In this section, "action" means an action that is commenced in court by, or on behalf of, the department of agriculture, trade and consumer protection to enforce chs. 88
(2) Enforcement costs order.
If a court imposes costs under s. 814.04
against a defendant in an action, the court may order that defendant to pay to the department any of the enforcement costs specified under sub. (3)
that the department has incurred. The prosecutor shall present evidence of the enforcement costs and the defendant shall be given an opportunity to refute that evidence. If any cost that a court orders a defendant to pay under this section may also be recovered by the department under s. 814.04
, the department may recover that cost only under this section, but that cost is not limited to the amounts specified in s. 814.04
(3) Enforcement costs available.
The court may include as an enforcement cost in an order under sub. (2)
, the department's reasonable cost of any of the following:
Expert witnesses who are not employes of the department.
Depositions, transcripts or photocopying.
Any investigation, study, analysis, engineering report, test or project that the court finds necessary for the preparation of the action, including the reasonable cost of compensation of laboratory personnel who are employed by the department, but excluding the cost of any other department personnel compensation.
(4) Restriction on use of enforcement costs.
The department shall use the amounts received for enforcement costs in the appropriation under s. 20.115 (8) (gm)
that consist of laboratory personnel compensation to purchase laboratory equipment, supplies or service.
Failing to furnish information.
Any owner or manager of any creamery, cheese factory, butter factory, condensary or milk receiving plant, and any person dealing in or manufacturing dairy products, who fails to furnish the statement prescribed under s. 93.06 (2)
to every person from whom milk is purchased or received, or who fails to comply with s. 93.07 (21)
, shall be fined not to exceed $200 or imprisoned in the county jail not to exceed 6 months or both.
(2) Obstructing officers.
Any person who obstructs or interferes with an officer or employe of the department in the performance of his or her duty or who refuses to permit access or sampling under s. 93.08
May be fined not more than $1,000 or imprisoned for not more than 6 months or both.
In lieu of the penalty under par. (a)
, may be required to forfeit not more than $2,000.
(3) Violation of order or regulation.
Any person who violates s. 93.09 (8)
, 93.10 (2)
or 93.11 (7)
, or who wilfully violates or refuses, neglects or fails to obey any order or regulation of the department, shall be punished as in sub. (1)
(4) Failure to obey orders.
Any person who wilfully violates s. 93.14 (3)
or 93.15 (3)
, or who wilfully violates or refuses, neglects or fails to obey any order or regulation made under s. 93.06 (3)
shall, for each offense, be punished by a fine of not more than five thousand dollars or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment.
In this subsection, "license" means a permit, certificate, registration or license issued by the department under chs. 91
or ch. 127
A person who files an application for the renewal or reissuance of a license after the license has expired shall pay, in addition to the fee for the license, an additional fee equal to 20% of the license fee or $5, whichever is greater. For purposes of this section, an application for a license shall not be considered an application for the renewal or reissuance of the license if the application is filed more than one year after the date of expiration of the original license.
(6) Fraudulent use of official seals.
Any person who falsifies, alters, forges, counterfeits or fraudulently issues or uses any official certificate, seal, stamp or mark of the department or any official sealing, stamping or marking device of the department:
May be fined not more than $10,000 or imprisoned for not more than one year in the county jail or both.
In lieu of the penalty under par. (a)
, may be required to forfeit not more than $10,000.
History: 1989 a. 282
; 1993 a. 16
Enforcement provisions. 93.22(1)
In cases arising under chs. 88
, the department may be represented by its attorney.
The department may, with the approval of the governor, appoint special counsel to prosecute or assist in the prosecution of any case arising under chs. 88
.The cost of such special counsel shall be charged to the appropriation for the department.
In any criminal or civil action under chs. 88
, any exception, exemption, proviso, excuse or qualification contained in any of said chapters, or in any order, standard or regulation thereunder, may be proved by the defendant, but need not be specified or negatived in the information or complaint, and, if so specified or negatived, no proof in relation to the matters so specified or negatived, shall be required of the plaintiff.