Chapter ATCP 40

1. This product is effective and useful for all labeled purposes when applied under Wisconsin conditions according to label directions.

2. The statements on the product label, and in related advertising and promotional materials, are truthful. The applicant has relevant and reliable information to substantiate all product labeling, including any claim or guarantee related to product contents. The applicant has relevant scientific evidence to substantiate all express and implied performance claims.

3. This product and its labeling comply with ch. ATCP 40, Wis. Adm. Code.”

ATCP 40.28(2)(g) (g) A method of analysis for each guaranteed active ingredient in the soil or plant additive. The method shall be one of the following:

ATCP 40.28(2)(g)1. 1. A method contained in the “Official Methods of Analysis of AOAC International”, 20th edition (2016).

ATCP 40.28 Note Note: The “Official Methods of Analysis of AOAC International”, 20th edition (2016) is on file with the department and the legislative reference bureau.

ATCP 40.28(2)(g)2. 2. For humic substances, the method contained in Appendix B.

ATCP 40.28(2)(g)3. 3. A method provided by the applicant and approved in writing by the department. The department may not approve a method under this subdivision if a method applies under subd. 1. or 2. A method approved under this subdivision must be relevant and scientifically defensible.

ATCP 40.28(2)(h) (h) Other relevant information required by the department.

ATCP 40.28 Note Note: You may obtain a permit application form from the department at the following address:

ATCP 40.28 Note Department of Agriculture, Trade and Consumer Protection

ATCP 40.28 Note ARM Division

ATCP 40.28 Note PO Box 8911

ATCP 40.28 Note Madison, WI 53708-8911

ATCP 40.28(3) (3) Permit not transferable. A permit under this section covers only one soil or plant additive product. A permit is not transferable between persons or products.

ATCP 40.28(4) (4) Fertilizer-additive combinations. A permit under this section does not authorize a person to distribute a fertilizer-additive combination unless the person also holds a fertilizer license under s. ATCP 40.04 and a fertilizer permit, if required, under s. ATCP 40.12.

ATCP 40.28(5) (5) Action on permit application. The department shall act on a permit application according to subch. IV.

ATCP 40.28 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05; CR 18-019: am. (2) (g) 1. Register January 2020 No. 769, eff. 2-1-20.

ATCP 40.30 ATCP 40.30 Soil or plant additives; content deficiencies. A soil or plant additive is mislabeled if, based on a sample collected and tested according to s. ATCP 40.32, the product contains less than 98% of the amount of any active ingredient guaranteed on the package label.

ATCP 40.30 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.

ATCP 40.32 ATCP 40.32 Soil or plant additives; sampling and testing.

ATCP 40.32(1) (1) Sampling. The department may sample a soil or plant additive to determine whether it contains ingredients in the amounts guaranteed on the product label, or to test for toxic substances or other contaminants. The department shall use a sampling method that is appropriate to the material being sampled.

ATCP 40.32(2) (2) Testing. The department may determine appropriate methods for testing soil or plant additives. The department shall use methods identified in s. ATCP 40.28 (2) (g), if available.

ATCP 40.32 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.

ATCP 40.34 ATCP 40.34 Soil or plant additives; toxic substances.

ATCP 40.34(1) (1) No soil or plant additive may contain any substance that is toxic or injurious to plants, animals, or humans when the soil or plant additive is handled or applied under reasonably foreseeable use conditions, unless the substance and hazards are identified on the product label.

ATCP 40.34 Note Note: See s. ATCP 40.24.

ATCP 40.34(2) (2) No soil or plant additive may contain a metal identified in Appendix C in a concentration that exceeds the maximum allowable concentration specified for that metal in Appendix C.

ATCP 40.34 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.

subch. IV of ch. ATCP 40 Subchapter IV — Reviewing Permit Applications

ATCP 40.40 ATCP 40.40 Complete application. Within 30 working days after a person submits a permit application under s. ATCP 40.12 or 40.28, the department shall determine whether the application is sufficiently complete to warrant further review. If the application is incomplete, the department shall notify the applicant of what is needed to complete the application. The department shall deny the application if the applicant fails to complete the application within 30 days of the department’s notice.

ATCP 40.40 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.

ATCP 40.42 ATCP 40.42 Initial review of permit application. The department may review a permit application to the extent that it deems appropriate, based on product uses, content, labeling, and performance claims. The department may do all of the following as part of its review:

ATCP 40.42(1) (1) Review product labeling for compliance with this chapter.

ATCP 40.42(2) (2) Review the efficacy and usefulness of the product, under Wisconsin conditions, when the product is used according to label directions.

ATCP 40.42(3) (3) Review labeling statements, including statements related to product contents and performance, to determine whether they are accurate, truthful, and properly substantiated.

ATCP 40.42 Note Note: For example, the department may review performance claims such as the following:

ATCP 40.42 Note • “Product X helps develop stronger, deeper root systems to help plants fight against minor diseases and insect infestations.”

ATCP 40.42 Note • “Product X will provide plant nutrients needed to give your lawn a golf course look.”

ATCP 40.42(4) (4) Review for possible health, safety, and environmental hazards, and for proper labeling of products containing potentially hazardous or toxic ingredients.

ATCP 40.42(5) (5) Review any analytical methodology proposed by the applicant under s. ATCP 40.28 (2) (g).

ATCP 40.42(6) (6) Review for compliance with other requirements under this chapter.

ATCP 40.42 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.

ATCP 40.44 ATCP 40.44 Action on permit application. Within 60 working days after the department receives a complete permit application under s. ATCP 40.12 or 40.28, the department shall do one of the following:

ATCP 40.44(1) (1) Issue the permit. The department may limit the time period for which the permit is effective, or impose other permit conditions that it deems necessary. If the department imposes permit conditions, the department shall give the applicant written notice of its reasons.

ATCP 40.44(2) (2) Deny the permit. If the department denies the permit, the department shall give the applicant written notice of its reasons.

ATCP 40.44(3) (3) Notification. Notify the applicant, in writing, that the department will conduct a supplementary review under s. ATCP 40.46. The notice shall do all the following:

ATCP 40.44(3)(a) (a) Identify the reasons for the supplementary review.

ATCP 40.44(3)(b) (b) Identify the scope of the supplementary review.

ATCP 40.44(3)(c) (c) Identify any additional information that the department requires of the applicant under s. ATCP 40.46 in order to conduct the supplementary review. The department may specify the form in which the applicant must submit the information.

ATCP 40.44 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.

ATCP 40.46 ATCP 40.46 Supplementary review.

ATCP 40.46(1) (1) General.

ATCP 40.46(1)(a) (a) The department may conduct a supplementary review of a permit application under s. ATCP 40.12 or 40.28 if the department has reasonable grounds to conclude that the supplementary review is needed to determine compliance with this chapter. The department may require the applicant to submit information under this section that may be relevant to the supplementary review. The department may deny a permit application if the applicant fails to provide the information.

ATCP 40.46 Note Note: The department may request assistance from the University of Wisconsin, college of agriculture and life sciences in evaluating any substantiating evidence under this section.

ATCP 40.46(1)(b) (b) In its supplementary review, the department may consider any information that the department considers relevant, including information provided by the applicant. The department may consider whether the information is accurate, relevant, material, reliable, properly documented, substantiated, scientifically valid, persuasive, consistent with generally accepted scientific knowledge, consistent with other reliable information, applicable under Wisconsin conditions, and applicable in light of recommended uses, use rates, and use directions.

ATCP 40.46(3) (3) Review period. The department shall complete a supplementary review under sub. (1) as soon as reasonably possible, and within 120 working days after the department receives all of the supplementary information requested under sub. (1) (a).

ATCP 40.46(4) (4) Action following supplementary review. When the department completes its supplementary review, the department shall do one of the following:

ATCP 40.46(4)(a) (a) Issue the permit. The department may limit the time period for which the permit is effective, or impose other permit conditions that it deems necessary. If the department imposes permit conditions, the department shall give the applicant written notice of its reasons.

ATCP 40.46(4)(b) (b) Deny the permit. If the department denies the permit, the department shall give the applicant written notice of its reasons.

ATCP 40.46 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.

ATCP 40.48 ATCP 40.48 Scientific substantiation. Test data and reports submitted in support of a permit application are not considered scientific unless all of the following apply:

ATCP 40.48(1) (1) The test data and reports result from tests conducted by competent scientific researchers, using appropriate scientific methods.

ATCP 40.48(2) (2) Test data and reports include all information needed to replicate the tests.

ATCP 40.48(3) (3) Field test data and reports, if any, result from field tests that comply with the standards in Appendix D.

ATCP 40.48(4) (4) Field test reports, if any, comply with the standards in Appendix E.

ATCP 40.48 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.

ATCP 40.50 ATCP 40.50 Withdrawing or modifying a permit application. A permit applicant may withdraw or modify an application at any time. An applicant may modify product contents or labeling to resolve issues presented in the permit review process. The department may, in its discretion, advise on label revisions at any point in the permit review process. Within 60 working days after the department receives a modified application that is complete, the department shall take action as provided in s. ATCP 40.44.

ATCP 40.50 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.

ATCP 40.52 ATCP 40.52 Permit reconsideration. The department may, at any time, reconsider the issuance of any permit under s. ATCP 40.12 or 40.28. The department may require a permit holder to submit relevant information as for a supplementary review under s. ATCP 40.46.

ATCP 40.52 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.

subch. V of ch. ATCP 40 Subchapter V — Prohibitions

ATCP 40.54 ATCP 40.54 Prohibitions.

ATCP 40.54(1) (1) Applications and reports. No person may do any of the following in connection with a license or permit application under this chapter, or in connection with any report or statement filed with the department under this chapter:

ATCP 40.54(1)(a) (a) Misrepresent or falsify any information.

ATCP 40.54(1)(b) (b) Make any statement that is not substantiated, to the extent required under this chapter, at the time the statement is made.

ATCP 40.54(2) (2) Advertising and promotional statements. No person may do any of the following in connection with the labeling, advertising, promotion, or distribution of any fertilizer or soil or plant additive:

ATCP 40.54(2)(a) (a) Make any representation that is false, deceptive, or misleading.

ATCP 40.54 Note Note: See also s. 100.18, Stats. A federally trademarked product name is not considered false, deceptive, or misleading under par. (a).

ATCP 40.54(2)(b) (b) Make any representation that is inconsistent with the product label.

ATCP 40.54(2)(c) (c) Represent that a product contains a plant nutrient or other beneficial substance, unless the guaranteed analysis includes a guarantee for that substance.

ATCP 40.54(2)(d) (d) Make any representation or warranty that is not substantiated, to the extent required under this chapter, at the time the representation or warranty is made.

ATCP 40.54(2)(e) (e) Represent that the department endorses or warrants the product.

ATCP 40.54(2)(f) (f) Make any performance, use, or efficacy claim for a product, distributed pursuant to a permit under s. ATCP 40.12 or 40.28, that exceeds or is inconsistent with the product label contained in the approved permit application. This does not apply to a performance, use, or efficacy claim that the department approves in writing.

ATCP 40.54(2)(g) (g) Distribute a fertilizer, pursuant to the exemption in s. ATCP 40.12 (2) (a), to a person in this state who is not licensed under s. ATCP 40.04.

ATCP 40.54 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.

subch. VI of ch. ATCP 40 Subchapter VI — Enforcement and Appeals

ATCP 40.56 ATCP 40.56 License or permit action.

ATCP 40.56(1) (1) The department may, for cause, deny, suspend, revoke, or impose conditions on a license or permit issued under this chapter. Cause includes any of the following: