Section 94.65. Soil and plant additives.

 

(1)   Definitions. In this section:

(a) “Active ingredient" means a component of a soil or plant additive from which the soil or plant additive derives all or part of its value or effectiveness and which is:

1. A living microorganism; or

2. Defined as an active ingredient by department rule.

(b) “Brand or product name" means a name, term, design or trademark which identifies the product.

(c) “Distribute" means to import, consign, sell, offer for sale, solicit orders for sale or otherwise supply for use in this state.

(d) “Inert ingredient" means a component of a soil or plant additive which does not affect the performance or efficacy of the soil or plant additive.

(e) “Label" means the display of written, printed or graphic matter which is attached to, or forms a part of, the immediate container of a soil or plant additive, or which accompanies a bulk distribution of soil or plant additive.

(em) “Sewage sludge" has the meaning specified in s. 94.64 (1) (pm) .

(f) “Soil or plant additive" means any substance which is intended to be applied to seeds, soil or plants and which is designed for use or claimed to have value in promoting or sustaining plant growth; improving crop yield or quality; promoting or sustaining the fertility of the soil; or favorably modifying the structural, physical or biological properties of the soil for agricultural purposes. “Soil or plant additive" does not include:

1. Fertilizer, as defined in s. 94.64 (1) (e) .

2. Liming material, as defined in s. 94.66 (1) (am) , if the liming material is distributed solely for the purposes stated in s. 94.66 (1) (am) .

3. Wood ashes or unmanipulated animal or vegetable manure, unless distributed under another name or description.

4. Pesticides registered under 7 USC 136 or by the department.

5. Any other substance exempted by department rule.

(g) “Unmanipulated animal or vegetable manure" has the meaning specified in s. 94.64 (1) (t) .

(2)   License.

(a) Except as provided under par. (b) , no person may manufacture or distribute a soil or plant additive in this state unless the person first obtains an annual license from the department. Application for a license or for renewal of a license shall be made on forms provided by the department and shall be accompanied by an annual license fee of $25. All licenses expire on March 31.

(b) No license is required of a person who distributes a soil or plant additive of a license holder, if the person:

1. Distributes the soil or plant additive under the name of the license holder and in the original container packaged and labeled by the license holder; and

2. Makes no content or performance claim for the soil or plant additive other than the written claim of the license holder.

(3)   Permit.

(a)

1. Except as provided under subds. 2. and 3. , no person may distribute a soil or plant additive in this state unless the person first obtains a permit from the department. A separate permit must be obtained for the distribution of each soil or plant additive.

2. No permit is required of a person who distributes a soil or plant additive for which a permit has been issued to a permit holder, if the person:

a. Distributes the soil or plant additive under the name of the permit holder and in the original container packaged and labeled by the permit holder; and

b. Makes no content or performance claim for the soil or plant additive other than the written claim of the permit holder.

3. No permit is required for the landspreading of sewage sludge under a pollutant discharge elimination system permit issued by the department of natural resources under s. 283.31 or 283.35 .

(b) The applicant shall apply for a permit on a form provided by the department and shall submit with the application a proposed product label and a nonrefundable fee of $100. The department may require that the applicant provide substantiation of application information under sub. (4) . The department may also require the applicant to make affirmative label and advertising disclosures if, in the absence of the disclosures, the department determines that the label or advertising of a soil or plant additive is deceptive or misleading.

(c)

1. Except as provided in s. 93.135 , if the department finds that the applicant has fulfilled the requirements of par. (b) , the department shall issue a permit.

2. If the department finds that the applicant has failed to fulfill the requirements of par. (b) , the department shall issue a notice of denial of the permit.

(d)

1. Any person who wishes to change the active ingredient contents or the recommended amount or frequency of application of a soil or plant additive for which the person has received a permit under par. (c) 1. shall apply to the department for an amended permit. Paragraphs (b) and (c) apply to the issuance of amended permits.

2. Any person who wishes to revise the label of a soil or plant additive for which the person has received a permit under par. (c) 1. , including a label revision which does not necessitate the issuance of an amended permit, shall file the revised label with the department prior to distributing the soil or plant additive bearing the revised label.

(e) No person who has been issued a permit or amended permit under this subsection may:

1. Transfer the permit or amended permit to another person.

2. Distribute or promote the distribution of the soil or plant additive using any performance, use or efficacy claim which exceeds that allowed by the permit or amended permit or which is inconsistent with the approved product label.

(f) Issuance of a permit or amended permit under this subsection is neither an endorsement nor a warranty by the department.

(4)   Substantiation requirements.

(a) As a condition to the issuance of a permit or amended permit under sub. (3) , the department may require that the applicant substantiate, by scientific evidence:

1. The efficacy and usefulness of the soil or plant additive if applied under conditions existing in this state at the amount and frequency recommended by the applicant.

2. The truthfulness of any statement made on the proposed soil or plant additive label or in a permit or amended permit application.

(b) The department may require that the substantiation under par. (a) 1. include replicable results of controlled experimental studies using the soil or plant additive, the names and qualifications of the researchers performing the studies and a complete description of the conditions and procedures of the studies.

(c) The department may request assistance from the University of Wisconsin-Madison College of Agricultural and Life Sciences in evaluating any substantiating evidence required under this subsection.

(5)   Label. Every soil or plant additive distributed in this state shall be clearly and conspicuously labeled with the following information:

(a) The name and address of the permit holder under sub. (3) .

(b) The brand or product name of the soil or plant additive.

(c) The net weight or liquid measure of the soil or plant additive contained in the package, container or bulk shipment to which the label refers.

(d) The specific purpose or use for which the soil or plant additive is claimed to be effective.

(e) Complete directions for use of the soil or plant additive, including the recommended amount and frequency of application.

(f) A guaranteed analysis of the contents of the soil or plant additive which shall include:

1. The name and percentage by weight of each active ingredient, listed under the heading “ACTIVE INGREDIENTS". For microbiological products, the statement of active ingredients shall state the number and kind of viable microorganisms per milliliter of liquid product, or per gram of nonliquid product.

2. The name and percentage by weight of each inert ingredient, listed under the heading “INERT INGREDIENTS".

(g) Any other information required by department rule.

(6)   Fees, reports and records.

(a) Each person holding a permit for the distribution of a soil or plant additive under sub. (3) shall:

1. Annually by March 31, file with the department a tonnage report setting forth the number of tons of each soil or plant additive distributed during the preceding year by that person or by any other person authorized under sub. (3) (a) 2. to distribute under the name of that person and pay to the department a fee of 25 cents per ton so distributed. The minimum total fee is $25.

2. Maintain, for 2 years following the date the tonnage report required under subd. 1. is filed, distribution records upon which the tonnage report is based. The permit holder shall make the distribution records available for inspection, copying and audit by the department upon request.

3. Annually by March 31, pay to the department a research fee of 10 cents for each ton of soil or plant additive distributed as described in the tonnage report filed under subd. 1. The minimum research fee is $1 for 10 tons or less. The department shall credit this fee to the appropriation account under s. 20.115 (7) (h) .

4. Annually by March 31, pay to the department a groundwater fee of 10 cents for each ton of soil or plant additive distributed, as described in the tonnage report filed under subd. 1. The minimum groundwater fee is $1 for 10 tons or less. All groundwater fees shall be credited to the environmental fund for environmental management.

(b) If by March 31 a person holding a permit under sub. (3) has failed to file a tonnage report or to pay the inspection fee required under par. (a) , the department may summarily suspend or revoke the permit or license issued under this section. A penalty of 10 percent of the inspection fee due shall be assessed against the permit holder for all inspection fees not paid when due. The minimum total penalty is $10. An unpaid inspection fee or penalty shall constitute a debt owed the department by the permit holder until paid. The department may not issue or renew a license or issue a permit or amended permit to a person owing an unpaid inspection fee or penalty.

(c) The department shall deposit fees collected under pars. (a) 1. and (b) and subs. (2) (a) and (3) (b) in the agrichemical management fund.

(7)   Prohibitions. No person may:

(a) Distribute a soil or plant additive in violation of this section or of rules promulgated under this section.

(b) Distribute a soil or plant additive which is toxic or injurious to plants when applied according to label directions.

(c) Make, in connection with the distribution or promotion of a soil or plant additive, any false, deceptive or misleading claim, representation or label statement.

(d) Make, in connection with the distribution or promotion of a soil or plant additive, any performance, use or efficacy claim:

1. Which exceeds the authorization of a permit issued for distribution of the soil or plant additive under this section;

2. Which is inconsistent with the product label; or

3. Without having scientific substantiation for the claim at the time the claim is made.

(e) Make any false, deceptive or misleading statement in a permit application or in a report or other document submitted to the department under this section.

(f) Distribute a soil or plant additive under a label which has not been filed with the department.

(g) Imply or directly state that the department endorses or warrants the efficacy of a soil or plant additive.

(8)   Inspection, sampling and analysis.

(a) The department may inspect, sample and analyze a soil or plant additive distributed in this state and investigate possible violations of this section and of rules promulgated under this section.

(b) The department may enter at all reasonable times any building, conveyance or premises used in the manufacture or distribution of soil or plant additives in this state to inspect or sample a soil or plant additive.

(c) Upon request of the department, a distributor of a soil or plant additive shall provide the department with a product sample, copy of advertising or label or any other data or information concerning the composition of the soil or plant additive or concerning any claim or representation made in connection with the soil or plant additive.

(9)   Rules. The department may promulgate rules to implement and administer this section.

(10)   Enforcement.

(a) Temporary holding order.

1. If the department has reasonable cause to believe that a soil or plant additive is being distributed in this state in violation of this section or of rules promulgated under this section, the department may serve a written order upon the owner or custodian of the soil or plant additive, temporarily prohibiting the distribution or movement of the product, pending further inspection, sampling or laboratory analysis. No person may distribute or move for any purpose the soil or plant additive described in the temporary holding order while the order is in effect unless the department has approved the distribution or movement.

2. The temporary holding order remains in effect for 60 days after the date of service, unless the order is terminated earlier by the department under subd. 3.

3. If the department determines that the distribution of the soil or plant additive does not violate this section or rules promulgated under this section, the department shall promptly terminate the temporary holding order by giving written notice to the owner or custodian.

(b) Extended holding order.

1. If the department determines that the distribution of the soil or plant additive is in violation of this section or of rules promulgated under this section, the department may extend the order by serving written notice on the owner or custodian of the soil or plant additive. No person may distribute, move or dispose of the soil or plant additive described in the extended holding order unless the department has approved the distribution, movement or disposition.

2. An extended holding order remains in effect until the department and the owner or custodian of the soil or plant additive have agreed on conditions of final disposition of the soil or plant additive or until the department authorizes or directs other disposition.

(c) Right to hearing. Holding orders under pars. (a) and (b) are subject to a right of hearing before the department if a request for hearing is made within 10 days after the date of service of the notice of the temporary or extended holding order.

(d) Injunction. Upon petition of the department, any court having equity jurisdiction may grant an injunction or order under s. 813.025 (2) for any violation of this section or of rules promulgated under this section.

(11)   Penalties.

(a) Any person who violates this section or a rule promulgated under this section shall forfeit not more than $500 for each violation.

(b) Any person who willfully violates this section shall be fined not more than $5,000 or imprisoned not more than one year in the county jail or both. Restitution shall be in accordance with s. 973.20 , except that an injured party shall receive the amount determined under s. 973.20 plus $50.

(12)   Damages. Any person suffering damages because of a violation of this section by another person may sue for damages in any court of competent jurisdiction and may recover twice the amount of the proven loss, together with costs including reasonable attorney fees, notwithstanding s. 814.04 (1) .

1985 a. 147 ; 1987 a. 398 ; 1989 a. 31 ; 1991 a. 39 , 112 ; 1993 a. 16 ; 1995 a. 176 , 227 ; 1997 a. 27 , 191 .