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.
Analysis and Supporting Documents used to Determine Effect on Small Business
The survey results indicated strong industry support for the proposed change. Industry representatives also appeared before the Department Board at its December 2017 meeting asking for the revision, citing the unnecessary cost and effort in meeting the annual affidavit renewal requirement, particularly when existing market pressures have largely precluded the use of rBST.
Effect on Small Business
The Department expects the proposed rule to have a positive impact on dairy businesses because it will reduce the annual regulatory burden while maintaining the same level of protection against mislabeled dairy products.
Changes from the Hearing Draft
The Legislative Council Rules Clearinghouse reviewed the proposed rule and did not identify any technical corrections to address. No changes were made based on feedback from the public hearings. Comments sent to the Department are discussed above under “Plain Language Analysis” section.
Next Steps
If the Board approves this final draft rule, the Department will submit the final draft rule to the Governor for written approval. If the Governor approves the final rule, the Department will then submit the rule to the Legislature for legislative committee review. If the Legislature has no objection to the rule, the Department Secretary will sign the final rulemaking order and transmit it for publication. The rule will take effect on the first day of the month following publication.
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Section 1. ATCP 83.02 (7) (a) is amended to read:
ATCP 83.02 (7) (a) A milk producer affidavit under sub. (5) (c) shall be a written statement, signed by the milk producer, which certifies to the person receiving the affidavit that the milk producer does not use synthetic bovine somatotropin in the production of milk shipped to that person. All affidavits in effect after January 1, 1996 shall be sworn and notarized.
Section 2. ATCP 83.02 (7) (d) 3. is repealed.
Dated this _______day of ___________, 2020.
WISCONSIN DEPARTMENT OF AGRICULTURE,
TRADE AND CONSUMER PROTECTION
By ___________________________________________
Randy J. Romanski, Interim, Secretary
