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:
•
The fertilizer contains less than 90% of the label guarantee for any primary nutrient.
•
The actual percentage amount of any primary nutrient falls at least 2 percentage points short of the percentage amount stated on the label.
•
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).
•
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:
•
Toxic concentrations of metals (toxic concentrations are specified in this rule).
•
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:
•
Fertilizer labeled for foliar application.
•
Phosphite or phosphorus acid.
•
“Humic substances" in soil or plant additives.
Prohibitions
Under this rule:
•
No person may misrepresent or falsify any license or permit application, or any other information filed with DATCP under this rule.
•
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):
•
Deny, suspend, revoke, or impose conditions on a license or permit (the affected manufacturer or distributor may demand a formal administrative hearing).
•
Issue holding orders to prevent the sale or movement of illegal products.
•
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:
•
Fertilizer terms defined in the Official Publication of the Association of American Plant Food Control Officials, No. 57 (2004).
•
Fertilizer sample collection methods specified in the Inspectors Manual of the Association of American Plant Food Control Officials, 6th edition (1999).
•
Fertilizer test methods specified in the “Official Methods of Analysis of AOAC International," volume I, 17th edition as updated by the 2nd revision (2003).
•
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).
•
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
States have historically regulated fertilizer and soil or plant additives to prevent fraudulent sales of worthless products, and to protect farmers, consumers and honest competitors against unfair and deceptive practices.
State fertilizer regulators have organized a national Association of American Plant Food Control Officials (AAPFCO). AAPFCO promotes uniform state laws related to fertilizers, soil or plant additives (also known as soil amendments), and liming materials used to correct soil acidity. Most states, including Wisconsin and surrounding states, follow AAPFCO principles and have similar basic laws. However, there is some variation in laws from state to state.
Fertilizer laws tend to be more standardized than soil or plant additive laws. Wisconsin's soil or plant additive law is similar to laws in Minnesota and Iowa. Illinois has little regulation of soil or plant additives. Michigan's law is similar to those in Wisconsin, Minnesota and Iowa, but is narrower in scope (it exempts various biological and hormone products).
Basic Fertilizer Regulation
Wisconsin and adjoining states have similar basic fertilizer laws, based on AAPFCO models. Wisconsin and adjoining states require similar labeling, and use similar terms and definitions (typically drawn from AAPFCO). There are minor variations between states.
Manure Sales
Fertilizer laws vary in their treatment of manure. All states exempt “unmanipulated" manure from the definition of fertilizer, but there is uncertainty related to the definition of “unmanipulated" manure and the treatment of bulk manure sales sales (including, for example, sales of farm-dried or farm-composted manure). Iowa licenses distributors of “bulk dry animal nutrient products" and has mechanisms to make purchasers aware of nutrient contents. Minnesota licenses commercial animal waste technicians and, effective in 2005, will certify private manure applicators. Illinois and Michigan do not address the issue.
This rule clarifies that manure is “unmanipulated" (and thus exempt from rule coverage) if it is modified solely for purposes of on-farm storage, handling, animal husbandry or odor control, rather than commercial sales. This rule also exempts unpackaged “manipulated" manure sold for use on land covered by a nutrient management plan (this exemption is not available in other states). This exemption does not apply to sales of packaged “manipulated" manure.
Nutrient Content
Wisconsin and all adjoining states, except Minnesota, require minimum percentage guarantees for primary plant nutrients (N-P-K) in mixed fertilizers sold for general agricultural use. The minimum percentage is 24% in Wisconsin, 20% in Illinois and Michigan, and 21% in Iowa (most mixed fertilizers actually have much higher guarantees).
Wisconsin allows sales of low-nutrient mixed fertilizers (below 24%) for specialized agricultural use or nonagricultural use, but only with a permit. Illinois, Michigan and Iowa allow sales only for nonagricultural use (Iowa also allows foliar fertilizers and composts for organic crop production).
The adjoining states require annual permits for nonagricultural fertilizer products (Iowa requires a one-time permit). Wisconsin requires one-time (not annual) permits, and only for low-nutrient products. This rule exempts federally listed “organic" products from the Wisconsin permit requirement. Wisconsin and Iowa spell out procedures for granting and suspending permits (other states are less clear).
Tonnage Reports and Fees
Wisconsin and adjoining states require fertilizer tonnage reports and tonnage fees. Wisconsin requires once-per-year reporting, whereas adjoining states require monthly (IL) or semi-annual (MN, IA, MI) reporting. Wisconsin tonnage fees are higher than surrounding states. Wisconsin is somewhat unique in using tonnage fees to fund environmental cleanup and research, as well as program administration. This rule does not change current tonnage fees.
Use Directions
This rule requires use directions on low-nutrient mixed fertilizers (not other fertilizers) and on soil or plant additives. The AAPFCO model requires use directions for all packaged fertilizers, and Minnesota requires use directions on all nonagricultural fertilizers. Other states do not require use directions, but prohibit agricultural sales of low-nutrient mixed fertilizers (with limited exceptions in Iowa). Minnesota, Iowa and Michigan, like Wisconsin, regulate soil or plant additives to ensure efficacy, and some states require use directions.
Nutrient Guarantees
Wisconsin's label format for fertilizer guarantees is consistent with surrounding states. All states use the AAPFCO model format, and identify the elements or compounds that qualify as recognized plant nutrients.
Labeling Combination Products
This rule clarifies the labeling of products that combine fertilizer and soil or plant additive materials. Although DATCP frequently encounters products of this type, neither AAPFCO nor any adjoining state provides any labeling guidance.
Hazard or Caution Statements
This rule requires hazard or caution statements for certain fertilizers that may be toxic to plants or animals, consistent with the current AAPFCO model rule. Iowa, Illinois and Minnesota follow an earlier draft of the AAPFCO model rule, which specifies precautionary statements for boron or molybdenum.
This rule also prohibits excessive concentrations of heavy metals, consistent with an AAPFCO policy statement. Other states do not specifically address this toxicity concern, except to a very limited extent.
Sample Collection and Analysis
Wisconsin and all adjoining states collect and analyze samples to check for compliance with label guarantees. AAPFCO establishes standard sampling methods and product tolerances that take account of manufacturing variability. This rule follows the AAPFCO model, but allows greater tolerances for individual nutrient guarantees. Other states vary in their approach.
Notice of Hearing
Pharmacy Examining Board
NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Pharmacy Examining Board in ss.
15.08 (5) (b),
227.11 (2) and
450.02 (3) (b) and
(d), Wis. Stats., and interpreting s.
450.02 (3) (b), Wis. Stats., the Pharmacy Examining Board will hold a public hearing at the time and place indicated below to consider an order to amend s.
Phar 6.08, relating to variance alternatives of alarm systems.
