WI Stat § 94.64 (2021)
2021 Wisconsin Statutes & Annotations|Chapter 94 - Plant industry.|94.64 - Fertilizer.

94.64  Fertilizer. (1) Definitions. As used in this section:(a) “Brand or product name" means a name term, design or trademark used in connection with one or more grades of fertilizer and which identifies the product as fertilizer.(b) “Bulk fertilizer" means fertilizer distributed in a nonpackaged form.(c) “Custom mixed fertilizer" means a mixed fertilizer formulated according to individual specifications furnished by the consumer prior to mixing.(d) “Distribute" means to import, consign, sell, offer for sale, solicit orders for sale, or otherwise supply fertilizer for sale or use in this state.(e) “Fertilizer" means any substance, containing one or more plant nutrients, which is used for its plant nutrient content and which is designed for use or claimed to have value in promoting plant growth, except unmanipulated animal or vegetable manures, marl, liming material, sewage sludge other than finished sewage sludge products, and wood ashes. “Fertilizer" includes fertilizer materials, mixed fertilizers, custom mixed fertilizers, nonagricultural fertilizers and all other fertilizers or mixtures of fertilizers, regardless of type or form.(f) “Fertilizer material" means an element or chemical compound, or a substance manufactured by chemical reaction, which:1. Contains one or more plant nutrients; and2. Constitutes a component of fertilizer or is used to compound fertilizer.(fm) “Finished sewage sludge product" means a product consisting in whole or in part of sewage sludge that is distributed to the public and that is disinfected by means of composting, pasteurization, wet air oxidation, heat treatment or other means.(g) “Grade" means the percentage guarantee of total nitrogen, available phosphorus or available phosphate, and soluble potassium or soluble potash stated in the same order as listed in this paragraph.(h) “Guaranteed analysis" means the percentage of each plant nutrient guaranteed or claimed to be present.(i) “Label" means any written, printed or graphic matter on or attached to packaged fertilizer or which is used to identify fertilizer distributed in bulk or held in bulk storage.(j) “Labeling" means all labels and other written, printed or graphic matter upon or accompanying fertilizer at any time, and includes advertising or sales literature.(k) “Manufacture" means to process, granulate, compound, produce, mix, blend or alter the composition of fertilizer or fertilizer materials.(L) “Mixed fertilizer" means a fertilizer containing any combination or mixture of fertilizer materials, or a fertilizer material and any other substance. A fertilizer material that contains impurities incident to the normal manufacturing or processing operations of that fertilizer material is not a mixed fertilizer as a result of the presence of such impurities unless the impurities are claimed as plant nutrients or fertilizer materials.(Lm) “Nonagricultural fertilizer" means any fertilizer distributed for nonfarm use, such as for home gardens, lawns, shrubbery, flowers, golf courses, parks, cemeteries, greenhouses or nurseries or for research or experimental purposes.(m) “Official sample" means a sample of fertilizer taken by a representative of the department in accordance with methods prescribed by department rules.(n) “Packaged fertilizer" means any type of fertilizer sold in closed containers.(o) “Percent" and “percentage" mean the percentage by weight.(p) “Plant nutrient" means boron, calcium, chlorine, copper, iron, magnesium, manganese, molybdenum, nitrogen, phosphorus or available phosphate, potassium or potash, sodium, sulfur, zinc or any other chemical element recognized as a plant nutrient by department rule.(pm) “Sewage sludge" means the residue material resulting from the treatment of sewage. In this paragraph, “sewage" has the meaning specified in s. 281.01 (13).(q) “Special-use fertilizer" means fertilizer designed and labeled for use in remedying nutrient deficiencies which are unique to certain crops or certain local areas.(r) “Ton" means a net ton of 2,000 pounds avoirdupois.(t) “Unmanipulated animal or vegetable manure" means animal or vegetable manure which has not been treated by mechanical drying, grinding or pelletizing, by adding a substance or by any other means. (2)  Labeling. (a) Any packaged fertilizer, including packaged custom mixed fertilizer, distributed in this state shall have placed on or affixed to the package a label setting forth in clearly legible and conspicuous form the following information:1. Name and address of the licensed manufacturer or distributor.2. Brand or product name.3. Grade.4. Guaranteed analysis.5. Net weight.(b) Any fertilizer distributed in this state in bulk shall be accompanied by a written or printed invoice or statement to be furnished to purchaser at time of delivery containing in clearly legible and conspicuous form the following information:1. Name and address of the licensed manufacturer or distributor.2. Name and address of the purchaser.3. Date of sale.4. Brand or product name.5. Grade.6. Guaranteed analysis.7. Net weight.(c) In lieu of grade and guaranteed analysis, custom mixed fertilizer sold in bulk may be labeled to show the weight and grade of each material in the mixture and total weight of the mixture. Grade shall be indicated if a grade is specified by the purchaser.(d) All fertilizer in bulk storage shall be identified with a label attached to the storage bin or container giving the name or grade of the product.(e)1. Guaranteed analysis for the primary nutrients of nitrogen, phosphorus and potassium shall be expressed on the label in the following order and form: - See PDF for table 2. If elemental guarantees are required by department rule under sub. (9) (a), the guaranteed analysis shall be expressed in terms of percentage of available phosphorus and potassium.3. Additional plant nutrients, besides nitrogen, phosphorus and potassium, claimed to be present in any form or manner shall be guaranteed on the elemental basis. Other beneficial substances or compounds, determinable by laboratory methods, may be guaranteed if approved by the department. (3)  Fertilizer license. (a)1. Except as provided in subd. 2., no person may manufacture or distribute fertilizer in this state without an annual license from the department. A separate license is required for each business location and each mobile unit at which the person manufactures fertilizer. A license expires on September 30 annually and is not transferable between persons or locations.2. Notwithstanding subd. 1., a person who distributes only any of the following is not required to obtain a license under subd. 1.:a. Fertilizer materials to manufacturers for further manufacturing.b. Packaged fertilizer that is in its original container as packaged and labeled by the manufacturer or distributor.c. Bulk fertilizer that the person obtains for resale purposes from a licensed manufacturer or distributor and that is labeled as required under sub. (2) (b) 1., 4., 5. and 6., with label information furnished by the licensed manufacturer or distributor.(b) An applicant for a license under par. (a) shall submit an application on a form provided by the department. The application shall include information reasonably required by the department for licensing purposes. As part of the application, the applicant shall identify each business location or mobile unit that the applicant uses to manufacture fertilizer in this state. The application shall be accompanied by all applicable fees under sub. (3r).(c) A person who has been issued a license under this subsection shall annually, on or before the date the person's license expires, notify the department that the person intends to maintain, amend, or discontinue the license. (3m)  NPK Percentage requirement; exemption permits. (a) No person may distribute mixed fertilizer in which the sum of the guarantees for nitrogen, available phosphate and soluble potash totals less than 24 percent unless:1. The mixed fertilizer is exempted from this requirement by department rule; or2. The mixed fertilizer is a nonagricultural or special-use fertilizer and the person obtains a permit from the department authorizing its distribution as a nonagricultural or special-use fertilizer.(b) An application for a permit under par. (a) 2. shall be on a form prescribed by the department and shall be accompanied by a proposed product label and a nonrefundable fee of $25. The department may require that the applicant substantiate, by scientific evidence:1. The efficacy and usefulness of the nonagricultural or special-use fertilizer if applied under conditions existing in this state at the amount and frequency recommended by the applicant.2. The truth of any statement made in the proposed product label or in the permit application.(c)1. If the department finds that the applicant has fulfilled the requirements of par. (b), the department shall issue the permit.2. If the department finds that the applicant has failed to meet the requirements of par. (b), the department shall issue a notice of denial of the permit.(d) Any person who wishes to change the active ingredient contents or the recommended amount or frequency of application of a nonagricultural or special-use fertilizer for which the person has received a permit under par. (c), shall apply to the department for an amended permit. Paragraphs (b) and (c) apply to the issuance of amended permits.(e) No person who has been issued a permit or amended permit under this subsection may:1. Transfer the permit or amended permit to another person.2. Distribute or promote the distribution of the nonagricultural or special-use fertilizer using any performance, use or efficacy claim which exceeds that allowed by the permit or amended permit or which is inconsistent with the approved product label.(f) Issuance of a permit or amended permit under this subsection is neither an endorsement nor a warranty by the department. (3r)  License fees and surcharges.  (a) A person applying for a license under sub. (3) shall pay the following annual license fees:1. For each business location and each mobile unit that the applicant uses to manufacture fertilizer in this state, $30.2. If the applicant distributes, but does not manufacture, fertilizer in this state, $30.(b) A person applying for a license under sub. (3) shall pay the following agricultural chemical cleanup surcharges:1. For each business location and each mobile unit that the applicant uses to manufacture fertilizer in this state, $20, except as provided in s. 94.73 (15).2. If the applicant distributes, but does not manufacture, fertilizer in this state, $20, except as provided in s. 94.73 (15).3. For each business location and each mobile unit that the applicant uses to distribute bulk fertilizer in this state, $25 in addition to the surcharge under subd. 2., except as provided in s. 94.73 (15).(c) The department shall deposit the license fees collected under par. (a) in the agrichemical management fund. The department shall deposit the surcharges collected under par. (b) in the agricultural chemical cleanup fund. (4)  Tonnage fees and surcharges.  (a)  Requirement. Except as provided in par. (b), a person who is required to be licensed under sub. (3) and who sells or distributes fertilizer in this state shall pay to the department the following fees and surcharges on all fertilizer that the person sells or distributes in this state:1. A basic fee of 30 cents per ton for fertilizer sold or distributed beginning on July 1, 2001, and ending on June 30, 2012, and 23 cents per ton for fertilizer sold or distributed after June 30, 2012, with a minimum fee of $25. 2. A research fee of 17 cents per ton, with a minimum fee of $1. 3. An additional research fee of 10 cents per ton, with a minimum fee of $1.4. A groundwater fee of 10 cents per ton, with a minimum fee of $1.5. An agricultural chemical cleanup surcharge of 10 cents per ton on all fertilizer that the person sells or distributes in this state, except as provided in s. 94.73 (15).6. Beginning on October 29, 1999, a weights and measures inspection fee of 2 cents per ton, with a minimum fee of $1.(b)  Exemptions. Paragraph (a) does not apply to any of the following:1. Fertilizer sold or distributed to a manufacturer for use in the further manufacture or processing of fertilizer.2. Fertilizer sold or distributed to a person licensed under sub. (3) (a), for resale by that person.(c)  Use of fees and surcharges. 1. The department shall deposit the fee under par. (a) 1. in the agrichemical management fund.2. The department shall credit the fee under par. (a) 2. to the appropriation account under s. 20.115 (7) (h).3. The department shall credit the fees collected under par. (a) 3. to the appropriation account under s. 20.285 (1) (k) for the University of Wisconsin-Extension outreach services. 4. The department shall deposit the fee under par. (a) 4. in the environmental fund for environmental management.5. The department shall deposit the surcharge under par. (a) 5. in the agricultural chemical cleanup fund.6. The department shall credit the fee under par. (a) 6. to the appropriation account under s. 20.115 (1) (j). (5)  Tonnage report and fee payment.  (a)  Requirement. A person who is required to pay fees or surcharges under sub. (4) shall do all of the following annually, on or before the date the license expires:1. File with the department a report that states the number of tons of each grade of fertilizer sold or distributed in this state during the 12 months ending on June 30 of that year on which the person is required to pay those fees or surcharges.2. Pay the fees and surcharges under sub. (4) on the tonnage reported under subd. 1.(b)  Extended deadline. The department may extend the filing deadline under par. (a) for up to 30 days for cause, in response to a request filed before the filing deadline.(c)  Late payment. If a person fails to pay a fee or surcharge when due under this section, the amount of the fee or surcharge is increased by $10 or 10 percent of the amount that the fee or surcharge would have been if paid when due, whichever is greater.(d)  Tonnage equivalents. A tonnage report under par. (a) 1. shall report liquid fertilizer tonnage in terms of dry fertilizer tonnage equivalents, as prescribed by the department.(e)  Audit. The department may audit a tonnage report under par. (a) 1., including the records on which the tonnage report is based. (6)  Records. A person who manufactures, sells or distributes fertilizer in this state shall keep records showing the grades and quantities of fertilizer manufactured, sold or distributed in this state. The person shall keep the records relating to the 12 months covered by a report under sub. (5) (a) 1. for at least 24 months following the date of filing the report. The person shall make the records available to the department for inspection and copying upon request.  (6m)  Records confidential. The department may not disclose information obtained under sub. (5) or (6) that reveals the grades or amounts of fertilizer sold or distributed by any person. This subsection does not prohibit the department from preparing and distributing aggregate information that does not reveal the grades or amounts of fertilizer sold or distributed by individual sellers or distributors. (6p)  Summary license suspension.  (a) The department may by written notice, without prior hearing, summarily suspend the license of any person who fails to file a report or pay a fee or surcharge as required under sub. (5).(b) A summary license suspension under par. (a) takes effect on the date specified in the notice, which may be no sooner than 10 days after the date on which the notice is received by the recipient.(c) A person whose license is suspended under par. (a) may request a meeting concerning the suspension. The department shall hold an informal meeting with the requester as soon as reasonably possible and not more than 10 days after the requester makes the request in writing, unless the requester agrees to a later date. If the matter is not resolved at the informal meeting, the requester may request a formal contested case hearing under ch. 227. A request for a hearing does not stay a summary suspension under par. (a).(d) A person who is required to pay a fee or surcharge under sub. (5) remains obligated to pay the fee or surcharge regardless of whether the person continues to be licensed under this section. (7)  Prohibitions. It is unlawful for any person:(a) To distribute any fertilizer in violation of this section or rules promulgated under this section.(b) To make any false, deceptive or misleading guarantee, claim or representation in connection with the distribution of fertilizer.(c) To manufacture or distribute any fertilizer without a license required by sub. (3).(d) To make any false or misleading statement in an application for a license or in any inspection fee or statistical report, or in any other statement or report filed with the department. (8)  Inspection, sampling and analysis.  (a) The department shall inspect, sample and analyze fertilizer distributed within the state at such time and place and to such extent as is necessary to determine compliance with this section.(b) The department may enter, at all reasonable times, any building, conveyance or premises used in the manufacture and distribution of fertilizer in this state to determine compliance with this section and to stop any conveyance transporting fertilizer for the purpose of inspecting and sampling the fertilizer and examining its labeling.(c) Manufacturers or distributors of fertilizer shall submit to the department, on request, fertilizer samples, copies of labeling or any other data or information which the department requests concerning composition and claims and representations made for fertilizer manufactured or distributed by them in this state. (8m)  Fertilizer research funds.  (a)  Use of funds. At the end of each fiscal year, the moneys collected under sub. (4) (a) 2. and s. 94.65 (6) (a) 3. shall be forwarded to the University of Wisconsin System to be used for research on soil management, soil fertility, plant nutrition problems and for research on surface water and groundwater problems which may be related to fertilizer usage; for dissemination of the results of the research; and for other designated activities tending to promote the correct usage of fertilizer materials.(b)  Fertilizer research council. The fertilizer research council shall recommend projects to be financed by fertilizer research funds. Members of the council shall meet at least annually to select projects to recommend for funding. The recommendations shall be made by majority vote of the council. If the University of Wisconsin System is unable to carry on the projected research, the council may recommend other appropriate nonprofit research institutions or agencies for receipt of funds. (9)  Rules. The department may promulgate rules:(a) Requiring that the guaranteed analysis of phosphorus and potassium be expressed in the elemental form. If adopted, such rule shall not take effect prior to July 1, 1972, and shall provide for an additional period of at least 5 years during which both the oxide and the elemental guarantees for phosphorus and potassium may be given on the same label.(b) Regulating the sale and labeling of fertilizer, including warning or caution statements or directions for use in connection with the labeling of fertilizer.(c) Governing methods of sampling, testing, examining and analyzing fertilizer.(d) Prescribing tolerances for deficiencies found in percentages of plant nutrient guaranteed to be present.(e) Prescribing the manner in which grade and guaranteed analysis shall be declared on the label.(f) Establishing standards of identity and purity for fertilizer materials.(g) Prescribing standards for the exemption of mixed fertilizers from the requirement under sub. (3m) (a).(h) Establishing standards and procedures to review an application for a permit or an amended permit for the distribution of a nonagricultural or special-use fertilizer under sub. (3m) (b). (10)  Publication. The department shall publish, at least annually, and in such form as it deems proper, information concerning the sales of fertilizers, together with other data on their production and use as it considers advisable, and a report of the results of the analyses based on official samples of fertilizers sold within the state compared with the analyses guaranteed on the product label. Information concerning the production and use of fertilizers shall be shown separately for the periods July 1 to December 31 and January 1 to June 30 of each year. No disclosure shall be made of the operations of any person. (11)  Enforcement. (a)  Stop sale orders. The department may issue and enforce a written or printed stop sale order to the owner or custodian of any lot or container of fertilizer distributed in violation of this section or of rules promulgated under this section. The order shall prohibit the sale or removal of the fertilizer, except as authorized by the department, until it has been brought into compliance with the law or until a plan for disposition is agreed upon with the department in writing. The stop sale order shall have the effect of a special order under s. 93.18 and shall be subject to judicial review if, within 10 days after service of the order, a request for a hearing is made to the department.(b)  Temporary holding orders. A temporary holding order may be issued whenever the department has reason to believe any lot or container of fertilizer may not be in compliance with the law pending further evaluation or laboratory examination and analysis. A temporary holding order shall be effective for no more than 15 days but may be extended for an additional 15-day period as may reasonably be necessary to complete sampling, analysis and evaluation of the fertilizer and its labeling. The fertilizer shall be released prior to the expiration of such temporary period if found to be in compliance with the law. If found to be in violation of the law, the temporary holding order shall be extended by notice, in writing, to the owner or custodian and a stop sale order issued prohibiting the further movement or disposition of the fertilizer without consent of the department, subject to the right of hearing before the department if requested within 10 days after service of such notice and stop sale order.(c)  Seizure, condemnation and sale. Fertilizer not in compliance with this section shall be subject to seizure on complaint of the department to a court having jurisdiction. If the court finds that the fertilizer is in violation of this section and orders the seizure thereof, it shall be disposed of as the court directs. Disposition shall not be ordered by the court without first granting the owner or custodian, at his or her request, reasonable opportunity to reprocess or relabel the fertilizer under supervision of the department to bring it into compliance with this section.(d)  Injunction. Upon petition of the department any court having equity jurisdiction may grant a temporary or permanent injunction restraining any person from violating or continuing to violate this section or any rules thereunder notwithstanding the existence of other remedies at law. (12)  Penalties. (a) Any person who violates this section or any rule issued thereunder shall forfeit $50 for the first violation and not less than $200 nor more than $500 for any subsequent violation. Any willful violation shall constitute a misdemeanor and any person convicted thereof shall be fined not less than $250 nor more than $5,000 or imprisoned in the county jail not more than one year or both.(b) It is the duty of each district attorney to whom any violation is reported to cause appropriate actions or proceedings to be instituted for the collection of forfeitures or enforcement of other remedies. In any enforcement action the court may, in addition to other penalties provided in this subsection, order restitution to any party injured by the purchase of fertilizer sold in violation of the law. If the violator is convicted of a crime, restitution shall be in accordance with s. 973.20.History:  1977 c. 418; 1981 c. 57; 1983 a. 189 ss. 121, 329 (20); 1983 a. 410; 1985 a. 147; 1987 a. 398; 1989 a. 31; 1991 a. 39, 112; 1993 a. 16, 417, 492; 1995 a. 4, 176, 227; 1997 a. 27; 1999 a. 9, 32; 2003 a. 33; 2005 a. 25; 2007 a. 20; 2011 a. 32; 2013 a. 20; 2017 a. 59; 2017 a. 365 s. 111.A local government is not preempted by s. 94.701 (3) (a) from regulating the phosphorous content in weed and feed products. A weed and feed product is both a pesticide, which under s. 94.701 (3) (a), only the state can regulate, and a fertilizer, which local government can regulate. The definition of both “pesticide" and “fertilizer" as including a mixture of the two preserves both state regulation of pesticides and local regulation of fertilizers. The state regulates the pesticide components of the mixed products, local government the fertilizer components. Croplife America. Inc. v. City of Madison, 432 F.3d 732 (2005).