Chapter ATCP 137

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.

ATCP 137.12(2) (2) “Container” does not include:

ATCP 137.12(2)(a) (a) A container’s lid.

ATCP 137.12(2)(b) (b) A tray originally used to contain meat or other foods for retail sale.

ATCP 137.12(2)(c) (c) A one quart or smaller mesh basket originally used to contain berries or other foods for retail sale.

ATCP 137.12(2)(d) (d) A container used to hold pesticides.

ATCP 137.12(3) (3) “Department” means the department of agriculture, trade and consumer protection.

ATCP 137.12(4) (4) “Rigid” means relatively inflexible and self-supporting when empty.

ATCP 137.12 Note Note: The above definitions provide additional detail to the larger definition of “plastic container” in s. 100.33 (1) (c), Stats., which is as follows:

ATCP 137.12 Note 100.33 (1) (c) “Plastic container” means an individual, separate, rigid plastic bottle, can, jar or carton, except for a blister pack, that is originally used to contain a product that is the subject of a retail sale, as defined under s. 100.30 (2) (h).

ATCP 137.12 Note Section 100.33 (1) (ad), Stats., defines “blister pack” as a“container in which an item has a covering of plastic film or preformed semirigid plastic and the covering is affixed to a rigid backing.” Blister packs are used to package various items, such as lunch meat, hardware and sporting goods that are displayed by hanging the blister packs from hooks.

ATCP 137.12 Note Under the definition of “plastic container”, empty plastic cups sold at retail (such as those sold in quantities of 50 for picnics) are not required to be labeled because they are not “originally used to contain a product that is the subject of a retail sale”. On the other hand, empty plastic cups a wholesaler sells to a retailer, which the retailer will fill in order to sell a beverage, must be labeled.

ATCP 137.12 Note Plastic containers used to hold pesticides can be recycled, but only in accordance with the pesticide label’s directions. In most situations, containers holding pesticides cannot be reused. See ch. ATCP 29 for other rules regarding pesticide use and disposal.

ATCP 137.12 History History: Cr. Register, November, 1990, No. 419, eff. 12-1-90; renum. from ATCP 135.03 and am. (intro.), Register, February, 1996, No. 482, eff. 3-1-96.

ATCP 137.13 ATCP 137.13 Labeling.

ATCP 137.13(1) (1) Triangular symbol. Each plastic container regulated under this subchapter and under s. 100.33, Stats., shall have a triangular symbol molded, imprinted or otherwise attached. Inside the triangle shall be a number and below the triangle shall be a series of letters identifying the resin used in the plastic container, as specified in sub. (2).

ATCP 137.13(2) (2) Identification of resin. To identify the resin used in a plastic container, the following codes are required as part of the symbol under sub. (1):

ATCP 137.13(2)(a) (a) If the plastic container is made of polyethylene terephthalate, the number “1” and the letters “PETE” with the symbol.

ATCP 137.13(2)(b) (b) If the plastic container is made of high density polyethylene, the number “2” and the letters “HDPE” with the symbol.

ATCP 137.13(2)(c) (c) If the plastic container is made of polyvinyl chloride, the number “3” and the letter “V” with the symbol.

ATCP 137.13(2)(d) (d) If the plastic container is made of low density polyethylene, the number “4” and the letters “LDPE” with the symbol.

ATCP 137.13(2)(e) (e) If the plastic container is made of polypropylene, the number “5” and the letters “PP” with the symbol.

ATCP 137.13(2)(f) (f) If the plastic container is made of polystyrene, the number “6”and the letters “PS” with the symbol.

ATCP 137.13(2)(g) (g) If the plastic container is made of other resins or of multiple resins, the number “7” and the word “OTHER” with the symbol. A plastic container whose label or base cup is composed of a different resin shall be labeled according to the container’s principal resin.

ATCP 137.13(3) (3) Label size.

ATCP 137.13(3)(a) (a) Except as provided in par. (b), the height of the triangle required under sub. (1) shall be at least one-half inch. The numbers and letters required under sub. (2) shall be at least one-fourth the height of the triangle.

ATCP 137.13(3)(b) (b) If a plastic container is designed such that a label of the size specified in par. (a) cannot be added to it, a smaller label may be used, if the label can be easily read at a glance.

ATCP 137.13 Note Note: Using a recycling symbol would satisfy the requirement that a triangular symbol be incorporated in the label, such as the following examples shown below. A simple triangle can be substituted for the recycling arrows.

ATCP 137.13 Note The prohibition against selling unlabeled plastic containers in s. 100.33, Stats., applies to sales and offers to sell made by manufacturers, distributors, those who place products in regulated plastic containers and retailers. The law does not specifically impose the duty to label on any one of these parties, but s. 100.33 (2), Stats., conveys an intent that primary labeling responsibility will fall first on plastic container manufacturers and next on those who place products in plastic containers.

ATCP 137.13 History History: Cr. Register, November, 1990, No. 419, eff. 12-1-90; renum. from ATCP 135.05 and am. (1), Register, February, 1996, No. 482, eff. 3-1-96.

ATCP 137.14 ATCP 137.14 Variances. The department may grant a variance from this subchapter, as provided in s. 100.33 (3m), Stats., if the requester can prove that labeling a type of plastic container is technologically impossible.

ATCP 137.14 History History: Cr. Register, November, 1990, No. 419, eff. 12-1-90; renum. from ATCP 135.07 and am., Register, February, 1996, No. 482, eff. 3-1-96.

ATCP 137.15 ATCP 137.15 Penalty. Each violation of this subchapter is subject to a forfeiture of not more than $500, as provided in s. 100.33 (4), Stats. Each day of violation constitutes a separate offense.

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ATCP 137.15 History History: Cr. Register, November, 1990, No. 419, eff. 12-1-90; renum. from ATCP 135.11 and am., Register, February, 1996, No. 482, eff. 3-1-96.