This rule exempts certain persons from licensing. For example, this rule exempts a farmer who sells unpackaged manure for application to land covered by a nutrient management plan, regardless of whether the manure is “manipulated." This rule also exempts persons who merely sell ingredients to licensed manufacturers, or distribute the packaged and labeled products of license holders.
A person must apply for a license on a form provided by DATCP. The person must include the required license information and fees, and must identify any low-nutrient mixed fertilizers or soil or plant additives for which product-specific permits are required (see below).
DATCP must normally grant or deny a license application within 45 working days after DATCP receives a complete license application. If DATCP denies a license application, or issues a conditional license, it must give its reasons.
License holders are currently required to pay annual license fees (based on number of business locations). License holders must also file confidential annual tonnage reports with DATCP, and pay tonnage fees based on product tonnage distributed in this state. Fee revenues are allocated according to a statutory formula for program administration, environmental cleanup and research. This rule does not change current license or tonnage fees, or the allocation of fee revenues.
Product-Specific Permits
Under current law, a license holder must have a product-specific permit to distribute a low-nutrient mixed fertilizer (in which the sum of the guarantees for primary plant nutrients is less than 24%) or a soil or plant additive. This rule exempts, from these permit requirements, a federally listed “organic" product that is labeled solely for organic crop production (see below).
An application for a product-specific permit must include all of the following:
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Proposed product labeling. The product label must include recommended uses and use directions to ensure effectiveness.
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A fee of $25 for a fertilizer and $100 for a soil or plant additive (this rule does not change current fees).
The applicant must certify all of the following in the application:
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The product is effective and useful for labeled purposes when applied under Wisconsin conditions according to label directions.
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The applicant has reliable information to substantiate product labeling, including content guarantees. The applicant must specify a lab method for testing the amount of each active ingredient guaranteed on the product label.
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The applicant has relevant scientific evidence to substantiate product performance claims.
The applicant is not required to submit substantiating information unless DATCP requests that information. DATCP may review a permit application to the extent that it deems appropriate. DATCP may review:
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Product labeling.
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Product efficacy, under Wisconsin conditions, when the product is used according to label directions.
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Product content and performance claims. DATCP may determine whether claims are truthful and properly substantiated. DATCP may also review lab methods used to determine product contents.
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Possible health, safety and environmental hazards (and hazard labeling).
DATCP has 30 working days to determine whether an application is complete. If an application is incomplete, DATCP must tell the applicant what is needed to complete the application. If the applicant fails to complete the application within 30 days, DATCP may deny the application.
DATCP must grant or deny an application within 60 working days after the applicant submits a complete application, unless DATCP reasonably finds that a supplementary review is necessary (for example, DATCP might request substantiation of performance claims that appear to be false or exaggerated). DATCP must identify the scope of any supplementary review, the reasons for the supplementary review, and any additional information requested of the applicant. DATCP must complete the supplementary review as soon as reasonably possible, but not more than 120 days after DATCP receives the requested information.
When the supplementary review is complete, DATCP must grant or deny the permit. DATCP may impose conditions on a permit as necessary (for example, DATCP may require the applicant to change false label claims).
DATCP currently processes 350 to 400 permits each year. In some cases, where there are serious concerns related to product efficacy or label claims, DATCP consults with university experts and evaluates available scientific evidence.
Fertilizer Labeling
This rule clarifies current fertilizer labeling requirements. Under this rule, all packaged fertilizer 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 fertilizer product name.
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The fertilizer “grade." This is a shorthand statement of primary plant nutrient contents. Primary plant nutrients are nitrogen (N), available phosphate (P2O5) and soluble potash (K2O), commonly designated as N-P-K.
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A “guaranteed analysis" of primary nutrients, secondary nutrients, micro-nutrients and enhancing elements, if any. The guaranteed analysis must be presented in a standard format. Guarantees must be expressed as minimum percentages by weight of the fertilizer. Supplementary information is required in some cases.
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The net weight of the fertilizer contained in the package.
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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):
