Chapter ATCP 40

ATCP 40.24(4)(b) (b) Paragraph (a) does not apply to a product that is distributed solely for organic crop production and qualifies for exemption under s. ATCP 40.28 (1) (b). This exemption does not limit any other express or implied warranty that may apply under Wisconsin law.

ATCP 40.24(4)(c) (c) The department does not warrant the efficacy of any soil or plant additive, or the truth of any label statement.

ATCP 40.24(5) (5) Proof of product claims.

ATCP 40.24(5)(a) (a) A person who manufactures or distributes a soil or plant additive shall have all of the following:

ATCP 40.24(5)(a)1. 1. Relevant and reliable information to substantiate all product labeling, including any claim or guarantee of product contents. The person shall have substantiation for each labeling statement before making that statement. Testimonials are not reliable information under this subdivision.

ATCP 40.24(5)(a)2. 2. Relevant scientific evidence to substantiate every performance claim, including any implied warranty under sub. (4). The scientific evidence shall substantiate that the product is effective for the stated purpose when applied under Wisconsin conditions according to the product label. The person shall have that scientific evidence before making the claim or implied warranty. Testimonials are not scientific evidence under this subdivision.

ATCP 40.24(5)(b) (b) The department may require a person to submit substantiating information under par. (a). The department may require the person to submit the information before or after the department issues a license under s. ATCP 40.20 or a permit under s. ATCP 40.28. The issuance of a license or permit does not create any finding or presumption that the license or permit holder has complied with par. (a).

ATCP 40.24 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.

ATCP 40.26 ATCP 40.26 Soil or plant additives; guaranteed analysis.

ATCP 40.26(1) (1) General. The label of every soil or plant additive shall include a guaranteed analysis that complies with this section. No person may represent that a soil or plant additive contains any substance unless that substance is listed in the guaranteed analysis.

ATCP 40.26(2) (2) Format.

ATCP 40.26(2)(a) (a) A guaranteed analysis for a soil or plant additive shall have the following format:

GUARANTEED ANALYSIS

ACTIVE INGREDIENTS

Common Name (Chemical Name)   _____%

Common Name (Chemical Name)   _____%

Common Name (Chemical Name)   _____%

INERT INGREDIENTS

Common Name (Chemical Name)   _____%

Common Name (Chemical Name)   _____%

Common Name (Chemical Name)   _____%

ATCP 40.26(2)(b) (b) The combined guarantees for active and inert ingredients shall total 100% unless the guaranteed analysis includes one or more active microorganism ingredients identified according to sub. (3) (b). A zero shall precede the decimal on any guarantee that is less than one percent.

ATCP 40.26(3) (3) Active ingredients.

ATCP 40.26(3)(a) (a) The guaranteed analysis shall identify, under the “active ingredients” subtitle, each ingredient that actively and directly contributes to the performance of the soil or plant additive. Except as provided in par. (b), the guaranteed analysis shall guarantee the amount of each active ingredient as a percentage of the soil or plant additive.

ATCP 40.26(3)(b) (b) If an active ingredient is a microorganism, the guaranteed analysis shall do all of the following:

ATCP 40.26(3)(b)1. 1. Identify the active microorganism genus. If any activity is unique to a species of the genus, the guaranteed analysis shall also identify that species.

ATCP 40.26(3)(b)2. 2. Guarantee the number of viable microorganisms or colony forming units (CFU’s), of each identified genus or species, per milliliter of liquid product or per gram of non-liquid product.

ATCP 40.26(4) (4) Inert ingredients. The guaranteed analysis shall identify, under the “inert ingredients” subtitle, the name and amount of each ingredient that does not contribute directly to the performance of the soil or plant additive.

ATCP 40.26(5) (5) Ingredient identification. Except as provided in sub. (3) (b), the guaranteed analysis shall identify each ingredient by its common name, if any, followed in parentheses by its chemical name as stated in the Merck Index, 15th edition (2013). If an ingredient is not sufficiently defined in the Merck Index, the department may approve an additional or alternative name for the ingredient.

ATCP 40.26 Note Note: The Merck Index, 15th edition (2013) is on file with the department and the legislative reference bureau.

ATCP 40.26(6) (6) Minimum guarantees. No soil or plant additive label may identify any ingredient for which the guaranteed analysis shows a zero guarantee.

ATCP 40.26(7) (7) Fertilizer-additive combinations. The guaranteed analysis for a fertilizer-additive combination shall be in the format shown in Appendix A. Plant nutrients shall be guaranteed according to s. ATCP 40.10. Other ingredients shall be guaranteed according to this section.

ATCP 40.26(8) (8) Format exemptions. The department may exempt a soil or plant additive from any guaranteed analysis format requirement under this section if the person requesting the exemption demonstrates all of the following to the department’s satisfaction:

ATCP 40.26(8)(a) (a) Another state, which has authorized sale of the soil or plant additive, has a conflicting statute or regulation.

ATCP 40.26(8)(b) (b) The format exemption will reconcile the conflict under par. (a).

ATCP 40.26(8)(c) (c) The format exemption will not affect, to the detriment of purchasers in this state, any claim or disclosure related to product performance, use, purpose, efficacy, or active ingredients.

ATCP 40.26(8)(d) (d) The format exemption will not cause the product label to be false, deceptive, or misleading in any respect.

ATCP 40.26(8)(e) (e) The format required by the other state satisfies the objectives of this section.

ATCP 40.26(8)(f) (f) The format required by the other state does not violate applicable labeling requirements, if any, under chs. ATCP 20, 29 and 41.

ATCP 40.26 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-0; CR 18-019: am. (5) Register January 2020 No. 769, eff. 2-1-2020.

ATCP 40.28 ATCP 40.28 Soil or plant additives; permits.

ATCP 40.28(1) (1) General.

ATCP 40.28(1)(a) (a) Except as provided in par. (b), no person may distribute a soil or plant additive in this state without a permit from the department under this section. The department shall review permit applications according to subch. IV.

ATCP 40.28(1)(b) (b) Paragraph (a) does not apply to a soil or plant additive labeled solely for organic crop production if all of the following apply:

ATCP 40.28(1)(b)1. 1. The product qualifies, or all of its active ingredients qualify, under 7 CFR 205 for use in organic crop production.

ATCP 40.28(1)(b)2. 2. The product label discloses the listing or approval under subd. 1.

ATCP 40.28(1)(b)3. 3. The product label conspicuously states that “This product is intended for use according to an approved organic system plan.”

ATCP 40.28(1)(b)4. 4. The manufacturer or distributor makes no performance claims for the product.

ATCP 40.28(1)(b)5. 5. The product label provides use directions, including use rates and methods of application.

ATCP 40.28(2) (2) Permit applications. A person seeking a permit under sub. (1) shall apply on a form provided by the department. The application shall include all of the following:

ATCP 40.28(2)(a) (a) The applicant’s name, business address, and license number under s. ATCP 40.20. If the applicant does not have a license under s. ATCP 40.20, the applicant shall also submit a license application under s. ATCP 40.20 (3). No permit under this section is valid unless the permit holder also holds a current license under s. ATCP 40.20.

ATCP 40.28(2)(b) (b) The name, business address, and license number under s. ATCP 40.20 of the person who manufactures the soil or plant additive, if the applicant is not the manufacturer.

ATCP 40.28(2)(c) (c) The product label, including all of the information required under s. ATCP 40.24.

ATCP 40.28(2)(d) (d) Proposed labeling, including any advertising or promotional materials that make content or performance claims not included on the product label.

ATCP 40.28(2)(e) (e) A fee of $100.

ATCP 40.28(2)(f) (f) The following written statement signed by the applicant:

“I hereby certify all the following:

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.