See also ch. ATCP 20
, Wis. adm. code.
Stop sale; penalties; enforcement. 94.46(1)(1)
The department may issue a written or printed “stop sale" order to the owner or custodian of any lot of agricultural or vegetable seed not conforming with ss. 94.38
, or rules thereunder. The order shall specify the sections of the law or rules violated and shall prohibit the sale or other disposition of the seed except as the department authorizes or directs. Unless the seed is brought into compliance with the law or rules and is released from the “stop sale" order, or other disposition is agreed upon in writing within 30 days after service of the order, the seed shall be disposed of as the department by notice in writing may direct. This shall not preclude the voluntary signing of a disposal agreement without the issuance of a “stop sale" order. Any notice or order hereunder may be served personally or by mail and shall have the effect of a special order under s. 93.18
subject to review under ch. 227
if within 10 days after service of any notice or order, the owner or custodian files with the department a written request for a hearing. Final disposition of the seed shall be stayed during pendency of the hearing but the “stop sale" order shall remain in effect.
Any lot of agricultural or vegetable seed not in compliance with ss. 94.38
, or rules thereunder, or not disposed of in accordance with any disposal agreement or order under sub. (1)
, shall be subject to seizure on complaint of the department to a court of competent jurisdiction. If the court finds the seed to be in violation of law and orders the condemnation of said seed, it shall be denatured, processed, destroyed, relabeled or otherwise disposed of as the court directs.
In addition to or in lieu of other remedies provided for enforcement of ss. 94.38
, the department may apply to the circuit court for a temporary or permanent injunction to prevent, restrain, or enjoin any person from violating ss. 94.38
or any rules or orders issued thereunder.
Any person violating ss. 94.38
or rules promulgated thereunder shall forfeit not less than $100 nor more than $500 for the first offense. For any subsequent offense occurring within 5 years of a previous offense, the person shall forfeit, for each offense, not less than $200 nor more than $1,000. The 5-year period shall be measured from the dates of the violations which resulted in convictions.
Any person who knowingly violates ss. 94.38
or rules promulgated thereunder may be fined not more than $500 or imprisoned not more than 6 months or both.
History: 1985 a. 138
Cultivated ginseng. 94.50(1)(1)
In this section:
“Cultivated ginseng" means ginseng dry root, live root, tissue culture or seed that is grown or nurtured in this state by a person.
“Dealer" means a person who buys cultivated ginseng for the purpose of resale, except that it does not include a person who buys cultivated ginseng dry root solely for the purpose of final retail sale to consumers in the United States.
“Grower" means a person who grows cultivated ginseng and who sells cultivated ginseng to a dealer.
“Out-of-state cultivated ginseng" means ginseng that is grown or nurtured outside this state by a person.
(2) Growers and dealers; registration.
No person may act as a grower or a dealer unless he or she is registered with the department. Any person who acts as a dealer and a grower shall register as both. Registrations shall be made annually on a form provided by the department. Registrations expire on December 31 of each year. A dealer, other than an individual who is eligible for the veterans fee waiver program under s. 45.44
, shall pay to the department an annual registration fee of $25. The department shall assign a registration number to each person registered under this subsection. All moneys collected under this subsection shall be credited to the appropriation account under s. 20.115 (7) (ga)
(3) Sale or shipment of cultivated ginseng. 94.50(3)(a)(a)
Except as provided in par. (f)
, no person may sell or ship cultivated ginseng to a dealer or ship cultivated ginseng out of this state unless the cultivated ginseng is accompanied by a valid completed shipment certificate which specifies the year of harvest. The person selling or shipping the cultivated ginseng shall complete a valid shipment certificate provided by the department. The person selling or shipping the cultivated ginseng shall on a valid form provided by the department report to the department within 30 days after the sale or shipment, the source of all of the cultivated ginseng included in the sale or shipment. Each person who completes a shipment certificate or report form shall retain a duplicate copy.
The department shall upon request provide each registered grower and dealer with shipment certificates and report forms required under par. (a)
. The department shall stamp each shipment certificate and report form with the registration number of the grower or dealer. A shipment certificate and report form is valid only if used during the registration period for which the stamp registration number of the grower or dealer was issued. The department may charge a reasonable fee to recover the costs related to providing shipment certificates and report forms. All moneys collected under this paragraph shall be credited to the appropriation account under s. 20.115 (7) (ga)
No dealer may purchase or receive cultivated ginseng unless it is accompanied by a completed shipment certificate. A dealer shall retain the original copy of each shipment certificate he or she receives.
No dealer may purchase or receive out-of-state cultivated ginseng unless the ginseng is accompanied by a valid written certificate, issued by the state of origin, certifying that the shipment consists solely of out-of-state cultivated ginseng. The certificate shall include the source, year of harvest, and dry weight of the out-of-state cultivated ginseng included in the shipment. A dealer shall retain a copy of each written certificate he or she receives.
No person may import out-of-state cultivated ginseng into this state, unless the imported shipment is accompanied by a valid shipment certificate issued by the state of origin. No person may ship out-of-state cultivated ginseng under a shipment certificate issued by this state.
does not apply to a person who sells or ships cultivated ginseng dry root to a person outside of this state who is buying or receiving the cultivated ginseng dry root solely for the purpose of final retail sale to consumers in the United States, if the person selling or shipping keeps a written record of the sale or shipment which shall include all of the following:
The name and address of the purchaser or recipient.
The dry weight of the cultivated ginseng dry root included in the sale or shipment.
The source of all of the cultivated ginseng dry root included in the sale or shipment.
The year in which the cultivated ginseng dry root was harvested.
(4) Inspection or submission of records.
A dealer or grower shall make all records that are required to be kept under this section available upon request to the department for inspection and copying. A dealer or grower registered in this state shall submit all records upon request to the department that are kept outside of this state and that are required to be kept under this section.
(5) False information.
No person may include false information on any document or record required under this section, or submit false information to the department in connection with a registration under sub. (2)
. No person may knowingly accept or retain a document or record required under this section that contains false information to facilitate the sale or shipment of ginseng in violation of this section or s. 29.611
(6) Public inspection of documents and records. 94.50(6)(a)(a)
Documents and records relating to transactions in cultivated ginseng dry root submitted under this section by a grower or dealer to the department are not open to public inspection.
Documents and records relating to transactions in cultivated ginseng live root, tissue culture or seed which are submitted by a grower or dealer to the department under this section shall be open to public inspection under subch. II of ch. 19
(7) Enforcement actions.
The department may by an order deny, suspend or revoke the registration of a dealer or a grower and may invalidate shipment certificates completed by the dealer or grower, if the department finds that the dealer or grower has violated this section. The department may by a summary order and without prior notice or hearing, suspend or invalidate the registration and shipment certificates of a dealer or grower if the department finds that there is a need for immediate action to prevent a violation of this section. An order issued under this subsection shall be in writing, have the force and effect of an order issued under s. 93.18
, and is subject to a right of hearing before the department, if requested within 10 days after service. Hearings on summary orders shall be conducted within 10 days after receipt of a request for hearing. Enforcement of a summary order shall not be stayed pending the hearing.
A person violating this section shall forfeit not more than $500 for each violation.
In this section, “hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9-tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis or the maximum concentration allowed under federal law up to 1 percent, whichever is greater, as tested using post-decarboxylation or other similarly reliable methods. “Hemp” does not include a prescription drug product that has been approved by the U.S. food and drug administration.
Subject to the provisions under this section, a person may plant, grow, cultivate, harvest, produce, sample, test, process, transport, transfer, take possession of, sell, import, and export hemp in this state to the greatest extent allowed under federal law.
The department shall issue licenses to hemp producers if hemp producers are required to hold a license to produce hemp under federal law and if the secretary of the U.S. department of agriculture has approved this state's hemp program. If the department issues such licenses, no person may produce hemp without a license from the department. Licenses from the department may authorize the planting, growing, cultivating, harvesting, producing, sampling, testing, processing, transporting, transferring, taking possession, selling, importing, and exporting of hemp. The department shall identify the requirements for applying for a license, approving or denying a license, and suspending or revoking a license, and shall identify the restrictions and obligations that apply to operating under a license. The department may restrict license eligibility based on a violation reported under sub. (2m)
. The department shall accept license applications throughout the calendar year. The department may set license terms and may set late fees for license renewals.
The department shall promulgate rules regulating the activities described in par. (a)
Except as provided under this section, rules promulgated under this section shall regulate the activities described in par. (a)
only to the extent required under federal law, and in a manner that allows the people of this state to have the greatest possible opportunity to engage in those activities.
A practice to maintain relevant information regarding land on which hemp is produced in this state, including a legal description of the land, as defined by the department, for a period of not less than 3 years.
A procedure for testing, using post-decarboxylation or other similarly reliable methods, delta-9-tetrahydrocannabinol concentration levels of hemp.
A procedure for the effective disposal of plants, whether growing or not, that are produced in violation of this section, and products derived from those plants.
A procedure for conducting annual inspection of, at a minimum, a random sample of hemp producers to verify that hemp is not produced in violation of this section.
The department shall promulgate rules, as the department determines to be necessary, to ensure the quality of hemp produced in this state, the security of activities related to hemp, and the safety of products produced from hemp, including any necessary testing; to ensure that the state's hemp program complies with federal law and to obtain and maintain any required federal approval of the state's hemp program; to verify adherence to laws and rules governing activities related to hemp; and to enforce violations of those laws and rules.
The department shall require the payment of an initial fee from any person who produces hemp in this state equal to the greater of $150 or $5 multiplied by the number of acres on which the person will produce hemp, but not to exceed $1,000. The department may also impose an annual fee on any person whose activities related to hemp are regulated by the department under this paragraph, in an amount not to exceed an amount sufficient to cover the costs to the department of regulating those activities, as determined by the department by rule. The department may establish lower initial and annual fees for licenses issued for research or noncommercial purposes.
The department may set criteria for approving persons to undertake any sampling and testing required by the department by rule. The department shall approve persons that meet the criteria to the extent allowed under federal law.
When sampling and testing a crop of hemp, the department is not required to sample and test every growing location or every strain. The department may not require the sampling and testing of hemp seedlings or clones that are intended to be planted and that originated from hemp seed certified under par. (c)
or from hemp seed or clones approved for growing under par. (f)
Following any required sampling and testing, or if the department determines that sampling and testing are not required, the department shall issue a certificate that states that the hemp has been tested or is not required to be tested for delta-9-tetrahydrocannabinol concentration and is in compliance with this section and rules promulgated under this section.
The department shall ensure that any of the following information that is in the department's possession relating to a licensee or applicant for a license under this section is confidential and not open to public inspection or copying under s. 19.35 (1)
, except that it shall be made available to a law enforcement agency or law enforcement officer:
Information relating to the locations of hemp production locations.
Personally identifiable information relating to a person who is lawfully engaging in activities related to hemp, unless the person elects, during the application and licensing or renewal process, for the department to release any or all of the person's personally identifiable information.
Information obtained about an individual as a result of any criminal history search performed in relation to authorizing the individual to engage in activities related to hemp.
Any other information about activities related to hemp that could create a security risk if disclosed.
The department shall promulgate rules setting forth the factors to be considered when determining whether to refer a person for prosecution under s. 961.32 (3) (c)
The department shall establish and administer a certification program, or shall designate a member of the Association of Official Seed Certifying Agencies or a successor organization to administer a certification program, for hemp seed in this state. A certification program under this paragraph shall include the testing and certification of delta-9-tetrahydrocannabinol concentrations in hemp plants from which certified seed is collected. Participation in the certification program shall be voluntary for producers of hemp. The department shall promulgate rules for the administration of any certification program established and administered by the department under this paragraph.
The department of justice shall provide information to the department that the department has identified, by rule, as necessary to administer the provisions under this subsection.
Before growing hemp, a hemp producer shall notify the department of the variety of hemp the producer intends to grow. A hemp producer may not grow hemp unless the department has approved the growth of that variety of hemp or the variety of hemp is certified under par. (c)
This subsection applies only to hemp producers, and only if the department determines that the hemp producer has negligently violated this section or rules promulgated under this section, including by negligently doing any of the following:
Failing to provide a legal description of land on which the producer produces hemp.
If required under federal law, failing to obtain a license or other required authorization from the department or from the U.S. department of agriculture.
Producing Cannabis sativa L. with a delta-9-tetrahydrocannabinol concentration of more than 0.3 percent on a dry weight basis or the maximum concentration allowed by law up to 1 percent.
A hemp producer who negligently violates this section or rules promulgated under this section shall comply with a plan established by the department to correct the negligent violation, which shall include all of the following:
A reasonable date by which the hemp producer is required to correct the negligent violation.
A requirement that the hemp producer periodically report to the department on the compliance of the hemp producer with the department's plan for a period of not less than the following 2 years.
A hemp producer who negligently violates this section or rules promulgated under this section 3 times in any 5-year period is ineligible to produce hemp for a period of 5 years beginning on the date of the 3rd violation.
(2m) Greater violations.
If the department determines that a hemp producer has violated this section or rules promulgated under this section with a culpable mental state greater than negligence, the department shall immediately report the hemp producer to the U.S. attorney general and the department of justice.
(2p) Felony convictions.
The department, with the assistance of the department of justice, shall, if required for federal authorization of this state's hemp program, conduct a background investigation of any person who applies to the department to produce hemp in this state, which shall include requiring the person to be fingerprinted on 2 fingerprint cards each bearing a complete set of the person's fingerprints, or by other technologies approved by law enforcement agencies. The department of justice shall submit any such fingerprint cards to the federal bureau of investigation for the purposes of verifying the identity of the person fingerprinted and obtaining records of his or her criminal arrests and convictions. No person may produce hemp in this state for 10 years following any felony conviction relating to a controlled substance under state or federal law unless the person held a valid license, registration, or other authorization to produce hemp under a pilot program of any state authorized by section 7606 of the federal agricultural act of 2014 on December 20, 2018, and the felony conviction occurred prior to that date.
(2r) False statement.
Any person who materially falsifies any information contained in an application to participate in the hemp program established under this section is ineligible to participate in the program.
(2t) Access to cannabidiol products.
Nothing in this section or rules promulgated under this section shall be construed as limiting a person's access to cannabidiol products under s. 961.32 (2m) (b)
Knowingly make an inaccurate claim about the content, delta-9-tetrahydrocannabinol concentration, quality, or origin of hemp or a hemp product in the course of transferring or selling the hemp or hemp product.
Knowingly sell at retail mislabelled hemp or hemp products.
The department shall investigate violations of par. (a)
. The department, or any district attorney or the department of justice upon the request of the department, may on behalf of the state do any of the following:
Bring an action for temporary or permanent injunctive relief in any court of competent jurisdiction for any violation of par. (a)
Bring an action in any court of competent jurisdiction for the recovery of a civil forfeiture against any person who violates par. (a)
in an amount not more than $1,000 for each violation.
In addition to any other remedies provided by law, any person suffering a pecuniary loss because of a violation of par. (a)
may bring a civil action to recover damages together with costs and disbursements, including reasonable attorney fees, and for equitable relief as determined by the court.
(3r) Private cause of action for grower contracts.
Any contract to purchase hemp from a hemp grower in this state shall provide that payment will be made to the grower within 7 days of taking possession of the hemp, unless the grower voluntarily and knowingly agrees to a different method of payment. In addition to any other remedies provided by law, any person suffering a pecuniary loss because of a violation of this subsection may bring a civil action to recover damages together with costs and disbursements, including reasonable attorney fees, notwithstanding s. 814.04 (1)
, and for equitable relief as determined by the court.
(3w) Emergency rules.
When promulgating rules under this section, the department may, as necessary, use the procedure under s. 227.24
to promulgate emergency rules. Notwithstanding s. 227.24 (1) (a)
, when promulgating emergency rules under this subsection, the department is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection. Notwithstanding s. 227.24 (1) (c)
, initial emergency rules and subsequent emergency rules promulgated under this subsection remain in effect until the date on which permanent rules take effect. Notwithstanding s. 227.24 (1) (e) 1d.
, for emergency rules promulgated under this subsection, the department is not required to prepare a statement of scope of the rules or to submit the proposed rules in final draft form to the governor for approval.