DATCP Docket No. 19-R-01           Final Hearing Draft
Rules Clearinghouse No. 19-143           January 30, 2020
The Wisconsin Department of Agriculture, Trade and Consumer Protection hereby proposes the following rule to repeal ATCP 83.02 (7) (d) 3. and to amend ATCP 83.02 (7) (a), relating to dairy product advertising and labeling.
Analysis Prepared by the Department
of Agriculture, Trade and Consumer Protection
Under Wis. Admin. Code ch. ATCP 83 (Dairy Product Advertising and Labeling), the Wisconsin Department of Agriculture, Trade and Consumer Protection (Department) spells out requirements for labeling and advertising dairy products as being made from milk produced without the use of synthetic bovine somatotropin (also known as recombinant bovine somatotropin, rBST, synthetic bovine growth hormone, recombinant bovine growth hormone, or rBGH). The labeling requirements are to be based upon affidavits from milk producers stating that the milk producers do not use synthetic bovine growth hormone for the production of milk. Affidavits must be signed before a notary and renewed every year. The objective of the proposed rule is to eliminate the annual renewal requirement for a milk producer’s affidavit.
Statutes Interpreted
Statute Interpreted: Wis. Stat. §§ 97.03, 97.09 (4), 97.10 (1), 97.25 (3), 100.18 (1), 100.183 (1), and 100.20 (2).
Statutory Authority
Statutory Authority:   Wis. Stat. §§ 93.07 (1), 97.09 (4), and 97.25 (3).
Explanation of Statutory Authority
The sale of misbranded food, as defined in Wis. Stat. § 97.03, is prohibited in Wis. Stat. § 97.10 (1). Fraudulent representation of products for sale is generally prohibited in Wis. Stat. § 100.18 (1) and misrepresentation of food for sale is prohibited in Wis. Stat. § 100.183 (1). The Department has authority in Wis. Stat. § 100.20 (2) to issue general orders to prevent unfair trade practices. The Department has stated authority in Wis. Stat. § 97.09 (4) to establish and enforce standards, governing the production, processing, packaging, labeling, transportation, storage, handling, display, sale, including retail sale, and distribution of foods, needed to protect the public from the sale of adulterated or misbranded foods. The Department also has specific authority under Wis. Stat. § 97.25 (3) to promulgate rules that authorize operators of certain licensed food businesses in Wisconsin to label dairy products as “Farmer-certified rBGH free,” or an equivalent statement that is not false or misleading. Additionally, the Department has general authority, under Wis. Stat. § 93.07 (1), to adopt rules to implement programs under its jurisdiction.
Related Statutes and Rules
Wis. Stat. §. 97.03 (Standards; misbranding)
Wis. Stat. §. 97.25 (Use of synthetic bovine growth hormone; labeling of dairy products)
Wis. Stat. §. 100.18 (Fraudulent representations)
Wis. Stat. §. 100.183 (Fraud, advertising foods)
Wis. Stat. §. 100.20 (Methods of competition and trade practices)
Wis. Admin. Code ch. ATCP 65 (Milk and Milk Products)
Plain Language Analysis
In revising Wis. Admin. Code ch. ATCP 83 (Dairy Product Advertising and Labeling), the Department seeks to eliminate the redundant effort necessary for milk producers to comply with the requirement to provide a yearly signed and notarized affidavit indicating non-use of rBST.
The Department held one public hearing on this rule on December 17, 2019 at the Department of Agriculture, Trade and Consumer Protection Hall of Fame Room 172 in Madison, WI.
Public hearing notices were posted at the State Legislature’s Active Rules Clearinghouse website and in the Administrative Register. Notices were e-mailed to all Department licensed dairy plant facilities as well as affected industry groups. A total of ten persons/organizations attended the hearing and/or submitted comments. Attendees included representatives from Foremost Farms, the Wisconsin Dairy Products Association, and the Wisconsin Independent Businesses. Comments were also received from industry groups including the Wisconsin Cheese Makers Association, Family Dairies USA, and the Cooperative Network.
Feedback received from industry groups and organization representatives indicated strong support for the proposed rule change. Industry representatives indicated that the proposed change would eliminate an undue burden for the dairy industry, citing significant cost and time savings. Commenters also stated that the proposed rule would better align Wisconsin with the regulations found in surrounding states.
Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations
The Food and Drug Administration (FDA) issued a guidance statement on rBST-free label claim wording, and initially approved administration of rBST to cows producing milk for human consumption. Otherwise, FDA has not promulgated any regulation specific to rBST-free label claims.
Comparison with Rules in Adjacent States
The states of Michigan, Iowa, Minnesota, and Illinois do not mandate milk producers in rule to comply with rBST-free labeling and affidavit requirements.
Summary of Factual Data and Analytical Methodologies
The Department surveyed various industry groups and dairy plants asking for their input on a proposed change removing the annual affidavit renewal requirement.
Links to Admin. Code and Statutes in this Register are to current versions, which may not be the version that was referred to in the original published document.