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Any statements or disclaimers required by this rule.
A manufacturer or distributor of bulk (unpackaged) fertilizer must provide similar information related to each bulk fertilizer delivery, on a written label statement that accompanies the delivery. The label statement must also indicate the delivery date, the name and address of the recipient, and the weight of the delivery.
A manufacturer who “custom-mixes" bulk fertilizer according to the purchaser's specifications may provide the purchaser with a written statement listing the weight and grade of each ingredient, rather than the grade and guarantee of the finished product, unless the purchaser contracts for a specified grade of finished product.
Under current rules, a person who sells bulk agricultural fertilizer to a landowner must record (and keep for 2 years) the name and address of the nutrient management planner who prepared the landowner's nutrient management plan (if any). This rule does not change that requirement.
Soil or Plant Additive Labeling
This rule clarifies current labeling requirements for soil or plant additives. Soil or plant additives must be clearly and conspicuously labeled with the following information:
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The name and address of the licensed manufacturer or distributor.
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The product name.
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The net weight or liquid measure of the package or bulk delivery.
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The purposes for which the soil or plant additive is recommended.
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Complete use directions to ensure that the product is effective and useful under Wisconsin conditions. The use directions must include the recommended application sites, methods, rates and frequencies. If effectiveness depends on use with other products or practices, that must be disclosed.
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A “guaranteed analysis."
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Supplementary disclosures, if applicable.
The “guaranteed analysis" must list all active and inert ingredients in a standard format. The amount of each active ingredient must be guaranteed as a percentage by weight of the soil or plant additive, unless the active ingredient is a microorganism. If microorganisms are claimed as active ingredients, the label must identify the type of microorganism and must guarantee the number of viable microorganisms per milliliter of liquid product or per gram of non-liquid product.
A federally listed “organic" product need not be labeled with recommended uses or use directions, provided the product is designed and labeled solely for organic crop production (see below). Product labeling must comply with other requirements under this rule. A manufacturer or distributor may not make any untrue, deceptive or misleading claims for the product.
Implied Warranty
A person who distributes a low-nutrient mixed fertilizer or soil or plant additive implicitly warrants that the product is effective for all of the purposes recommended in the product labeling, when applied under Wisconsin conditions according to label directions. This warranty does not apply to federally listed “organic" products that are designed and labeled solely for organic crop production (see below).
Combination Products; Labeling
Combination products (fertilizers or soil or plant additives combined with each other, or with pesticides, seed or liming materials) must be labeled according to this rule and other applicable regulations. For example, fertilizer-pesticide combinations (such as “weed and feed" products) must be labeled according to this rule and applicable pesticide rules.
Substantiating Label Claims
Manufacturers and distributors of fertilizers or soil or plant additives must have:
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Relevant and reliable information to substantiate product labeling, including product content claims.
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Relevant scientific evidence to substantiate performance claims made for low-nutrient mixed fertilizers or soil or plant additives. The evidence must substantiate the performance claims under Wisconsin conditions, when the product is applied according to label directions.
Manufacturers and distributors must have substantiation for label claims before they make those claims. DATCP may require a manufacturer or labeler to submit substantiating information. This rule spells out standards for scientific substantiation of performance claims (for example, mere “testimonials" do not qualify).
“Organic" Products
This rule exempts federally listed “organic" products from permit requirements and certain labeling requirements under this rule (see above) if all of the following apply:
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The product is listed for organic crop production under federal law, or is approved for organic crop production by a federally-accredited certifying agency (and the product label so states).
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The product label states that “This product is intended for use according to an approved organic system plan."
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The manufacturer or distributor makes no performance claims for the product.
Although federally listed “organic" products are exempt from some requirements under this rule, they must comply with other requirements. Sellers must be licensed by DATCP, and must label product contents according to this rule. A seller may not make false, deceptive or misleading claims.
Product Sampling and Testing
DATCP may collect and test product samples to determine compliance with content guarantees. For these “official tests," DATCP will use sampling and test methods prescribed in this rule.
Content Deficiencies
A fertilizer is mislabeled if an “official test" shows any of the following:
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The fertilizer contains less than 90% of the label guarantee for any primary nutrient.
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The actual percentage amount of any primary nutrient falls at least 2 percentage points short of the percentage amount stated on the label.
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The economic value of primary nutrients actually present is less than 98% of the “economic value" of the amounts guaranteed (“economic value" is calculated according to this rule).
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The amount of any secondary nutrient, micronutrient or enhancing element falls short of the label guarantee by an amount specified in this rule.
A soil or plant additive is mislabeled if an “official test" shows that it contains less than 98% of the amount of any active ingredient guaranteed on the label.
Toxic Substances
No product may contain any of the following:
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Toxic concentrations of metals (toxic concentrations are specified in this rule).
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A substance that is toxic or injurious to plants, animals or humans when the fertilizer or soil or plant additive is handled or applied under reasonably foreseeable use conditions, unless the substance and its hazards are identified on the product label.
Special Provisions
This rule includes specific regulations or disclosure requirements related to:
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Fertilizer labeled for foliar application.
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Phosphite or phosphorus acid.
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“Humic substances" in soil or plant additives.
Prohibitions
Under this rule:
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No person may misrepresent or falsify any license or permit application, or any other information filed with DATCP under this rule.
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No person may do any of the following in connection with the labeling, promotion or distribution of any fertilizer or soil or plant additive:
- Make any statement that is false, deceptive or misleading.
- Make any statement that is inconsistent with the product label.
- Represent that a product contains a plant nutrient or other substance, unless the “guaranteed analysis" includes a guarantee for that substance.
- Make any statement or warranty that is not substantiated, to the extent required under this chapter, at the time the statement or warranty is made.
- State or imply that DATCP endorses or warrants the product.
- Make any performance claim, for a product distributed under permit, that is contrary to the product label contained in the approved permit application.
Enforcement
DATCP may take the following actions against rule violators, as appropriate (per current law):
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Deny, suspend, revoke, or impose conditions on a license or permit (the affected manufacturer or distributor may demand a formal administrative hearing).
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Issue holding orders to prevent the sale or movement of illegal products.
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Prosecute violators in court (seizure actions, injunctions, restitution, civil forfeitures or criminal penalties).
Standards Incorporated by Reference
Pursuant to s.
227.21, Stats., DATCP will request permission from the attorney general and the revisor of statutes to incorporate the following standards by reference in this rule:
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Fertilizer terms defined in the Official Publication of the Association of American Plant Food Control Officials, No. 57 (2004).
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Fertilizer sample collection methods specified in the Inspectors Manual of the Association of American Plant Food Control Officials, 6th edition (1999).
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Fertilizer test methods specified in the “Official Methods of Analysis of AOAC International," volume I, 17th edition as updated by the 2nd revision (2003).
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Statement of uniform interpretation and policy 25, related to heavy metal concentrations in fertilizer, contained in the Official Publication of the Association of American Plant Food Control Officials, No 57 (2004).
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Standard chemical names listed in the Merck Index, 12
th edition (1996).
Copies of the standards will be kept on file with DATCP, the secretary of state and the revisor of statutes. Copies may be obtained from the publishing organizations.
Fiscal Impact
This rule will have no fiscal impact on DATCP or local units of government. This rule will clarify current regulations, and improve program administration. DATCP does not anticipate any additional costs or staffing needs. A complete fiscal estimate is attached.
Business Impact
This rule will protect farmers, consumers and honest competitors against unfair and deceptive sales practices. This rule is designed to prevent fraudulent sales of worthless or hazardous products. It is also designed to prevent deceptive labeling claims that may mislead purchasers or give sellers an unfair competitive advantage.
There are approximately 540 persons licensed to manufacture or distribute fertilizers or soil or plant additives in Wisconsin. Up to 30% of these license holders may be small businesses. Affected businesses include farm centers and cooperatives, lawncare businesses, and manufacturers of nonagricultural and specialty fertilizers.
This rule will have few, if any, adverse impacts on business. This rule will not increase fees and, for most honest businesses, will not increase costs. For the most part, this rule merely clarifies current requirements and procedures. However, this rule may require some businesses to modify their labels, or be more diligent in substantiating label claims.
The fertilizer industry serves about 30,000 Wisconsin farmers, many of whom are small businesses. This rule will benefit farmers, by preventing unfair and deceptive sales practices. This rule will facilitate farmer-to-farmer sales of manure, by expanding the current exemption for “unmanipulated" manure and creating an exemption for “manipulated" manure sold for application under a nutrient management plan.
This rule makes special allowance for sellers of federally listed “organic" fertilizers and soil or plant additives. Federally listed “organic" products are exempt from permit requirements, and from certain labeling requirements, if they are designed and labeled solely for use in organic crop production (basic licensing and labeling requirements will still apply). Sellers may not make false, deceptive or misleading claims for “organic" products.
Because this rule will not have a significant adverse impact on small business, it is not subject to the delayed small business effective date provision in s.
227.22 (2) (e), Stats.
A small business analysis (“initial regulatory flexibility analysis") is attached.
Under
2003 Wis. Act 145, DATCP and other agencies must adopt rules spelling out their rule enforcement policy for small businesses. DATCP has not incorporated a small business enforcement policy in this rule, but will propose a separate rule on that subject. DATCP will, to the maximum extent feasible, seek voluntary compliance with this rule.
Environmental Impact
This rule will have no adverse environmental impact. This rule will clarify the licensing, permitting and labeling requirements for fertilizer and soil or plant additive products. This rule will help prevent environmental and safety hazards associated with some products. A complete environmental assessment is attached.
Federal Regulation
There is no significant federal regulation of fertilizers or soil or plant additives, although there is a long history of regulation by states (see below).
The United States department of agriculture (USDA) has established rules for “organic" crop production. USDA rules list fertilizers and soil or plant additives that are suitable for “organic" crop production, and accredits private organizations that may approve other “organic" products. This rule exempts these federally listed “organic" products from permit requirements and certain labeling requirements under this rule (see above).
Surrounding State Regulation
General
