Chapter ATCP 137

Subchapter II — Plastic Containers; Labeling for Recycling

ATCP 137.11   Authority.

ATCP 137.12   Definitions.

ATCP 137.13   Labeling.

ATCP 137.14   Variances.

ATCP 137.15   Penalty.

subch. I of ch. ATCP 137 Subchapter I — Recycled, Recyclable or Degradable Products

ATCP 137.01 ATCP 137.01 Scope and authority. This subchapter is adopted under ss. 100.20 (2) and 100.295, Stats. This subchapter applies to representations made for any product that is sold or leased, offered for sale or lease, or promoted or distributed for sale or lease at wholesale or retail. This subchapter applies to oral, written or graphic representations including advertisements, product labels, statements made in the print or broadcast media, and representations made in the form of trademarks, logos, symbols or trade names.

ATCP 137.01 History History: Cr. Register, January, 1994, No. 457, eff. 2-1-94; am. Register, February, 1996, No. 482, eff. 3-1-96.

ATCP 137.02 ATCP 137.02 Definitions. In this subchapter:

ATCP 137.02(1) (1) “Decomposition” means the biological, chemical, photochemical, or other physical process by which an organic substance is broken down and its molecular structure dismantled into soluble nutrients, minerals, inorganic compounds, simple organic compounds found in nature, carbon dioxide, methane or water, or any combination of those breakdown products.

ATCP 137.02(2) (2) “Department” means the state of Wisconsin department of agriculture, trade and consumer protection.

ATCP 137.02(3) (3) “Organic substance” means a natural or synthetic substance consisting of, derived from, or chemically related to carbon compounds in which hydrogen is bonded to carbon.

ATCP 137.02(4) (4) “Package” means any container, wrapping or packing material in which a product is contained or enclosed.

ATCP 137.02(5) (5) “Person” means an individual, corporation, partnership, association or other business organization or entity.

ATCP 137.02(6) (6) “Post-consumer material” means a product or other material generated by a business or consumer that has served its intended end use and has been recovered or diverted from the solid waste stream for purposes of recycling.

ATCP 137.02(7) (7) “Pre-consumer material” means material generated during any step in the production of a product that has been recovered or diverted from the solid waste stream for the purpose of recycling. “Pre-consumer material” does not include the virgin content of scraps or by-products generated and reused within the original product manufacturing process.

ATCP 137.02(8) (8) “Product” means a manufactured article, good, commodity, package or container that is sold or leased, offered for sale or lease, or promoted or distributed for sale or lease at wholesale or retail. “Product” includes a package or container that accompanies, encloses or contains another product.

ATCP 137.02(9) (9) “Recycled material” means pre-consumer material or post-consumer material, or both.

ATCP 137.02(10) (10) “Represent that a product is degradable” means to represent directly or by implication, through the use of any words or images, that a product is capable of complete or partial decomposition, and includes any representation that a product is biodegradable, photodegradable, compostable or decomposable.

ATCP 137.02(11) (11) “Represent that a product is recyclable” means to represent directly or by implication, through the use of any words or images, that a product is entirely or partly composed of materials that can be recovered from the solid waste stream and used in the manufacture of other products.

ATCP 137.02(12) (12) “Represent that a product is recycled” means to represent directly or by implication, through the use of any words or images, that a product is entirely or partly composed of recycled material.

ATCP 137.02(13) (13) “Representation” means any oral, written or pictorial representation made in connection with the sale, lease, offering for sale or lease, promotion or distribution of a product. “Representation” includes advertisements, product labels, statements made in the print or broadcast media, and representations made in the form of trademarks, logos, symbols or trade names.

ATCP 137.02 History History: Cr. Register, January, 1994, No. 457, eff. 2-1-94; am. (intro.), Register, February, 1996, No. 482, eff. 3-1-96.

ATCP 137.03 ATCP 137.03 General prohibitions.

ATCP 137.03(1) (1) No person may represent, directly or by implication, that a product is recycled, recyclable or degradable if the representation is false, deceptive or misleading.

ATCP 137.03(2) (2) No person may represent, directly or by implication, that a product is recycled, recyclable or degradable if the representation violates this chapter.

ATCP 137.03 History History: Cr. Register, January, 1994, No. 457, eff. 2-1-94.

ATCP 137.04 ATCP 137.04 Degradability representations.

ATCP 137.04(1) (1) No person may represent, without qualification, that a product is degradable unless all of the following apply under customary conditions of use and disposal in the area where the product is sold:

ATCP 137.04(1)(a) (a) The product decomposes completely to the point that it is entirely broken down into soluble nutrients, minerals, inorganic compounds, simple organic compounds found in nature, carbon dioxide, methane or water, or any combination of those breakdown products.

ATCP 137.04(1)(b) (b) The product decomposes completely within a reasonably short period of time compatible with normal conditions of use or disposal of the product.

ATCP 137.04(1)(c) (c) The product’s decomposition does not release any contaminant or substance at a level that violates state or federal environmental quality standards, or that is toxic to persons or the environment.

ATCP 137.04(2) (2) If a product does not meet all of the requirements under sub. (1), no person may represent that the product is degradable unless the representation is qualified to the extent necessary to avoid consumer deception.

ATCP 137.04(3) (3) No person may misrepresent, directly or by implication, any of the following:

ATCP 137.04(3)(a) (a) That a product is degradable under customary conditions of use and disposal in the area where the product is sold. If a product is not degradable under customary conditions of use and disposal, the representation shall specify the conditions of use and disposal under which the product is degradable. If a specified disposal method is not available to a substantial majority of the population in the area where the product is sold, the representation shall clearly disclose that it may not be available.

ATCP 137.04(3)(b) (b) That a product is compostable in home composting piles or devices. If composting is specified as a method of disposal, the representation shall clearly indicate whether the product can be safely and effectively composted at home.

ATCP 137.04(3)(c) (c) The rate or extent to which a product will decompose under customary conditions of use and disposal in the area where the product is sold, or under specified conditions of use and disposal.

ATCP 137.04(4) (4) A label only used at wholesale by a manufacturer of connectors for beverage containers as defined in s. 134.77 (1) (b), Stats., representing compliance with s. 134.77 (3), Stats., to packagers of beverages as defined in s. 134.77 (1) (a), Stats., does not constitute a representation, for purposes of this section, that a plastic beverage connector is degradable.

ATCP 137.04(5) (5) No person may represent that a product is degradable unless both of the following apply:

ATCP 137.04(5)(a) (a) The representation complies with s. ATCP 137.07.

ATCP 137.04(5)(b) (b) The person can substantiate the representation under s. ATCP 137.08.

ATCP 137.04 History History: Cr. Register, January, 1994, No. 457, eff. 2-1-94; am. (4), Register, February, 1996, No. 482, eff. 3-1-96.

ATCP 137.05 ATCP 137.05 Recyclability representations.

ATCP 137.05(1) (1) No person may represent, without qualification, that a product is recyclable unless the product is entirely composed of materials that satisfy all of the following requirements:

ATCP 137.05(1)(a) (a) The materials can be collected, separated or otherwise recovered from the solid waste stream by recycling systems that are readily available to a substantial majority of the population in the area where the product is sold, using normal methods of operation.

ATCP 137.05(1)(b) (b) The materials recovered under par. (a) can, by means of established commercial processes, be processed and reused as raw materials for the manufacture of new products.

ATCP 137.05(2) (2) If a product does not meet all of the requirements under sub. (1), no person may represent that the product is recyclable unless the representation is qualified to the extent necessary to avoid consumer deception.

ATCP 137.05(3) (3) No person may misrepresent, directly or by implication, any of the following:

ATCP 137.05(3)(a) (a) That recycling systems needed to recycle the product are readily available in the area where the product is sold. If suitable recycling systems are not readily available to a substantial majority of the population in the area where the product is sold, or if those systems do not ordinarily accept the product for recycling, no person may represent that the product is recyclable unless the representation clearly discloses that suitable recycling facilities may not be available.

ATCP 137.05(3)(b) (b) That the product is compatible with suitable recycling systems that are readily available in the area where the product is sold. If, because of the product’s size or shape, or for any other reason, a product is incompatible with recycling systems, no person may represent that the product is recyclable.

ATCP 137.05(4) (4) An identifying symbol placed on a plastic container to comply with subchapter II does not constitute a representation, for purposes of this subchapter, that the container is recyclable.

ATCP 137.05(5) (5) No person may represent that a product is recyclable unless both of the following apply:

ATCP 137.05(5)(a) (a) The representation complies with s. ATCP 137.07.

ATCP 137.05(5)(b) (b) The person can substantiate the representation under s. ATCP 137.08.

ATCP 137.05 History History: Cr. Register, January, 1994, No. 457, eff. 2-1-94; am. (4), Register, February, 1996, No. 482, eff. 3-1-96.

ATCP 137.06 ATCP 137.06 Recycled content representations.

ATCP 137.06(1) (1) No person may represent, without qualification, that a product is recycled, or that it contains or is made from recycled material, unless at least one of the following applies:

ATCP 137.06(1)(a) (a) The entire product consists of, or is made from, recycled material.

ATCP 137.06(1)(b) (b) The representation clearly identifies, to the nearest 5% or closer, the minimum percentage by weight of the product that constitutes or is made from recycled material. For paper products, recycled content may be expressed as a percentage of fiber content in the product rather than a percentage by weight of the product.

ATCP 137.06(2) (2) No person may represent that a product contains or is made from “post-consumer material” or “pre-consumer material” unless the use of those terms conforms to the definitions under s. ATCP 137.02 (6) and (7).

ATCP 137.06(3) (3) If any person represents that a product contains or is made from “post-consumer material” or “pre-consumer material,” the representation shall clearly identify, to the nearest 5% or closer, the product’s minimum percentage content of that material, by weight. For paper products, the percentage content of post-consumer or pre-consumer material may be expressed as a percentage of fiber content rather than a percentage by weight.

ATCP 137.06(4) (4) No person may represent that a product is recycled, that it contains or is made from recycled material, or that it contains or is made from “post-consumer material” or “pre-consumer material” unless both of the following apply:

ATCP 137.06(4)(a) (a) The representation complies with s. ATCP 137.07.

ATCP 137.06(4)(b) (b) The person can substantiate the representation under s. ATCP 137.08.

ATCP 137.06 History History: Cr. Register, January, 1994, No. 457, eff. 2-1-94.

ATCP 137.07 ATCP 137.07 Form and content of representations. No person may represent that a product is recycled, recyclable or degradable unless the representation complies with all of the following:

ATCP 137.07(1) (1) If the representation is not valid for the entire product, the representation shall clearly identify the specific parts of the product for which the representation is valid. If a representation is valid for a product, but invalid for a closure, fastener or similar minor component of the product, the representation need not specify that the representation does not apply to that minor component unless failure to do so affects the validity of the representation for the rest of the product.

ATCP 137.07(2) (2) The representation shall clearly identify the product manufacturer, distributor, lessor or seller responsible for the representation. If the representation is made as part of a product label, it shall include the responsible person’s business address, including street address, city, state and zip code, except that the street address may be omitted if the address can be found under the name of the responsible person in a current city directory or telephone directory.

ATCP 137.07(3) (3) If a representation is required to include any disclosure or qualifying statements under this subchapter, the disclosures and qualifying statements shall be clear and conspicuous in relation to the representation.

ATCP 137.07 History History: Cr. Register, January, 1994, No. 457, eff. 2-1-94; am. (3), Register, February, 1996, No. 482, eff. 3-1-96.

ATCP 137.08 ATCP 137.08 Substantiating representations.

ATCP 137.08(1) (1) No person may represent that a product is recycled, recyclable or degradable unless that person can substantiate the representation at the time the representation is made. The substantiation shall be all of the following:

ATCP 137.08(1)(a) (a) Adequate to support every direct and implied claim made in the representation.

ATCP 137.08(1)(b) (b) Based on competent and reliable evidence consisting of tests, analyses, research, studies or other evidence developed and evaluated in an objective manner by persons qualified to do so, using procedures that are generally accepted in the profession as yielding accurate and reliable results.

ATCP 137.08(1)(c) (c) Adequate to prove that the representation is not false, deceptive or misleading.

ATCP 137.08(1)(d) (d) Adequate to support the representation under reasonably foreseeable conditions specified or implied in the representation.

ATCP 137.08(2) (2) No document or other evidence may be used to substantiate a representation under sub. (1) unless the person making the representation possessed that document or evidence at the time the representation was made, and relied upon that document or evidence in making the representation.

ATCP 137.08(3) (3) If any person represents that a product is recycled, recyclable or degradable, the department may issue a written notice to that person requiring that person to provide the department with the evidence upon which that person relied to substantiate the representation at the time the representation was made. The person making the representation shall submit the required evidence to the department within 45 days after the request is made, unless the department grants an extension of time.

ATCP 137.08 History History: Cr. Register, January, 1994, No. 457, eff. 2-1-94.

ATCP 137.09 ATCP 137.09 Special orders. The department may, by special order under s. 100.20 (3), Stats., prohibit any person from violating this chapter, and require that person to take specific action to correct the violation. A special order under s. 100.20 (3), Stats., is not a prerequisite to other enforcement action and does not preclude other enforcement action.

ATCP 137.09 Note Note: See ch. ATCP 1 related to procedure in special order cases.

ATCP 137.09 History History: Cr. Register, January, 1994, No. 457, eff. 2-1-94.

subch. II of ch. ATCP 137 Subchapter II — Plastic Containers; Labeling for Recycling

ATCP 137.11 ATCP 137.11 Authority. This subchapter is promulgated pursuant to s. 100.33, Stats.

ATCP 137.11 History History: Cr. Register, November, 1990, No. 419, eff. 12-1-90; renum. from ATCP 135.01 and am., Register, February, 1996, No. 482, eff. 3-1-96.

ATCP 137.12 ATCP 137.12 Definitions. The definitions set forth in s. 100.33, Stats., apply to this subchapter. For the purpose of interpreting s. 100.33, Stats., and this subchapter:

ATCP 137.12(1) (1) “Carton” includes an individual, separate, rigid plastic cup, if the cup is originally used to contain a product that is the subject of a retail sale.