AN ACT MODERNIZING CONNECTICUT FERTILIZER LAW.

This bill updates the laws regulating fertilizer, changes the law concerning adulterated milk, and creates a grant program for dairy farmers (“milk producers”).

The bill updates fertilizer law by replacing current law's provisions, which are based on a 1965 recommended model law from the Association of American Plant Food Control Officials (AAPFCO), with the most recent AAPFCO recommended version.

The bill supersedes any inconsistent or conflicting special acts municipal ordinances, or regulations. It prohibits municipalities from enacting or attempting to enforce any ordinance or regulation concerning registration, packaging, labeling, sale, storage, distribution, use, or application of a fertilizer. It explicitly extends the Department of Agriculture (DOAG) commissioner's enforcement powers to regulations he adopts and allows anyone aggrieved them to appeal to Superior Court.

The bill creates an account to assist milk producers and funds it by temporarily increasing from the bill's effective date until July 1, 2011 the fee people pay, from $ 30 to $ 40, when filing documents with town clerks. The bill accordingly temporarily decreases portion of funds for certain programs three entities receive from this fee and increases the amount the DOAG receives. It requires DOAG to use the majority of the funds for the milk producer grant program.

The bill removes nonprofit agriculture organizations as eligible for DOAG's farm transition grant program. By law, the program provides matching grants for diversification of existing farm operations, transitioning to value added agricultural production and sales, and developing farmers' markets and other venues in which a majority of products sold are grown in the state. It adds these entities to those eligible for DOAG's farm viability matching grant program. Under current law, farm viability matching grants may be used for (1) local capital projects that foster agricultural viability, including, processing facilities and farmers' markets, and (2) the development and implementation of agriculturally friendly land use regulations and local farmland protection strategies that sustain and promote local agriculture.

The bill also adds to the viability matching grant's purposes the development of new marketing programs and venues through or in which a majority of products sold are state grown.

This bill explicitly prohibits selling, offering to sell, bartering, or exchanging adulterated milk, milk products, or cheese (i. e. , dairy products), and related activities. A first violation is an infraction and a second violation within one year is a class A misdemeanor. It exempts production of dairy products for personal consumption or consumption by immediate family members from its prohibitions.

The bill eliminates the DOAG commissioner's option to adopt regulations that incorporate by reference the federal Pasteurized Milk Ordinance. It requires instead that all milk dealers processing, handling, storing, distributing, transporting, selling, offering for sale, bartering, or exchanging any dairy product comply with the sanitation, handling, storage, and processing requirements of relevant state milk and milk product laws and regulations.

It defines “adulterated” and “misbranded” dairy products and makes technical changes.

*Senate Amendment “A” makes changes to the update of the fertilizer law and adds the provisions concerning adulterated milk.

EFFECTIVE DATE: July 1, 2009, except (1) upon passage for the milk producer grant program and (2) October 1, 2009 for provisions concerning adulterated milk.

The law regulates fertilizer from those selling it for distribution in the state (registrants) through distributors who buy it from them to ensure those who purchase it (nonregistrants) receive the product as advertised (i. e. , with the correct ingredients).

The bill specifies that the DOAG commissioner or his duly authorized agent may administer and enforce fertilizer laws and regulations.

The bill replaces the term “commercial fertilizer” with “fertilizer. ” It basically maintains the same definition as a “regulated plant growing substance,” but potentially expands exemptions under it by allowing the commissioner to exempt products through regulation. It also specifies that wood and ash are not considered fertilizer, as opposed to wood ash and gypsum under current law.

The law requires each brand and grade of fertilizer to be registered annually before it can be distributed in the state. The bill specifies that (1) the registration must be in the name of the person whose name appears on the fertilizer label and (2) a distributor's exemption from registering a fertilizer that is already registered is only valid if the exempted fertilizer does not materially differ from the one already registered. It eliminates the requirement that the application include the source from which the nitrogen, phosphorus, and potassium were derived.

It requires the label to include (1) the brand and grade, but waives the grade requirement when no primary nutrients are claimed, and (2) directions for use for fertilizer distributed to the end user.

The bill sets the registration application fee at $ 75 beginning July 1, 2009 and requires the commissioner to set the fee by regulation beginning January 1, 2010. Under current law, the fee is $ 15 per major and minor element for each brand and grade listed on the application, up to $ 90 per individual product.

The bill requires each distributor to pay the commissioner an inspection fee for all fertilizer that they distribute to nonregistrants in Connecticut. Under current law, the commissioner establishes this fee through regulation, but it must be at least 25¢ per ton. The bill sets the fee at 25¢ per ton and the minimum inspection fee at $ 10. It exempts all sales and exchanges between manufacturers and sales by distributors from the fee, removing current law's exemption for such transactions of less than 10 tons. (Presumably this means distributors who sell directly to consumers at retail are exempt, as the bill requires a fee on distributions to nonregistrants. )

The bill changes reporting requirements. It eliminates the law requiring (1) anyone registering commercial fertilizers to furnish the commissioner with a confidential written statement of the tonnage of each grade of commercial fertilizer that he or she annually sells in the state and (2) the commissioner to provide a copy of the registration to the applicant once approved. This information is protected and cannot be disclosed in a way that divulges anyone's operations.

It also eliminates the law that specifies that when more than one person is involved in commercial fertilizer distribution, the last person who registers the fertilizer and who distributes to a nonregistered dealer or consumer is responsible for reporting the tonnage and paying the inspection fee, unless an earlier distributor did this.

Instead, the bill requires anyone who distributes or sells fertilizer to a customer to provide the commissioner with a written report detailing:

1. the county of the consignee of such fertilizer;

2. the amount, in tons or fractions of tons, of each grade of such fertilizer; and

3. the form in which the fertilizer was distributed, including bags, bulk, or liquid.

They must submit the written report to the commissioner no later than July 30 for distributions or sales made during the preceding 12 months.

The bill prohibits the commissioner from disclosing any identifying information on a person who submitted a report to a third party (presumably this protects the information, as well as information about the person).

By law, anyone who distributes fertilizer in the state must annually file with the commissioner, on forms he provides, an annual statement for the year ending June 30 stating the number of net tons of each commercial fertilizer distributed in the state. Under current law, the report is due on or before July 15th and must be accompanied by an inspection fee. The bill changes the due date to July 30.

Under current law, if the tonnage report is not filed and the inspection fee is not paid within 60 days of June 30, a collection fee of 10% of the amount due, which must be at least $ 10, is assessed against the registrant and may be collected by legal action. The bill eliminates the $ 10 minimum.

The bill explicitly requires that fertilizer use and application comply with best management practices and with regulations the commissioner adopts. It requires bulk fertilizers to be stored in a way that minimizes their release and protects the environment. By law, “bulk fertilizer” is distributed in a nonpackaged form.

The law permits the DOAG commissioner or his authorized agent to enforce commercial fertilizer statutes. Under current law, the commissioner or his agent, during normal business hours, may (1) enter any factory, warehouse, or establishment in the state where commercial fertilizers are manufactured, processed, packed, or held for distribution; (2) enter any vehicle used to transport or hold fertilizers; and (3) inspect, in a reasonable manner, buildings and vehicles and all pertinent equipment, finished and unfinished materials, containers, and labeling in them.

The bill specifies that the commissioner or agent may also enforce fertilizer regulations and allow investigations outside of normal business hours, removing the requirement that he (1) complete inspection during normal business hours in a reasonable manner and (2) sample fertilizer during regular business hours.

Under current law, analytical methods and sampling must be those adopted by the director of the Connecticut Agriculture Experiment Station and commissioner from recognized authorities, such as the Journal of the Association of Official Analytical Chemists. The bill instead requires that they be those adopted by the Association of Official Analytical Chemists International.

Under current law, the director must forward the results of the official analysis to the commissioner, registrant, and distributor. When asked, the director must give the registrant a portion of any sample found that is subject to penalty or other legal action. The bill requires the director to retain official samples for which penalties are assessed for nutritional deficiencies for at least 90 days after the deficiency report is issued.

Current law requires that violators pay all penalties assessed for fertilizer content violations to the consumer of the commercial fertilizer lot represented by the sample analyzed. They must pay within three months after the date commissioner notifies them and promptly forward receipts to the commissioner. If a consumer cannot be found, the penalty must be paid to the commissioner who must remit the money to the treasurer for deposit in the General Fund. This applies only to purchases of one ton or more of fertilizer.

Under the bill, when the commissioner finds satisfactory evidence that a person (1) has altered the content of fertilizer a registrant supplied or (2) mixed or commingled fertilizer from two or more suppliers, and the result of either alteration changes the fertilizer's originally guaranteed analysis, the commissioner must require the person to obtain a registration and hold the person liable for all applicable penalty payments. The person is also subject to any other applicable provisions of the bill or regulations, including seizure, condemnation, and the commissioner's stop sale order.

The bill specifies that a deficiency in an official sample of mixed fertilizer resulting from nonuniformity is not the same as deficiency due to actual plant nutrient shortage and subject to action by the commissioner.

The bill specifies that its provisions do not prevent anyone from commencing an action in Superior Court for damages or penalty payments relating to fertilizer or fertilizer material.

Under the bill, evidence that a registrant or an applicant has violated any provision of fertilizer law may result in revocation, refusal, or suspension of that brand of fertilizer's registration or the commissioner's refusal to register it.

By law, the commissioner may issue and enforce a “stop sale, use or removal” order to the owner or custodian of any fertilizer lot to hold the fertilizer at a designated place when the commissioner finds it is being offered for sale in violation of the statutes. The order is effective until the lot owner or custodian complies with the law, after which the fertilizer is released. The bill extends this enforcement power to any regulations the commissioner adopts.

The bill eliminates the requirement that the commissioner seek a court order to seize any lot of fertilizer not in compliance with the law, thus allowing him to act on his own authority. It explicitly extends this enforcement power to violations of regulations he adopts.

The bill allows the owner or custodian of a fertilizer lot who has been issued a stop sale, use, or removal order to be given the opportunity to appear for a hearing by the commissioner or his designee.

The bill also transfers from the court to the commissioner (1) the ability to condemn seized fertilizer and have it disposed of and (2) the requirement to give the claimant an opportunity to ask for the lot to be released, or processed or relabeled to bring it in compliance with the law.

By law, distributing misbranded fertilizer is prohibited. The bill expands what constitutes misbranded fertilizer. Under current law, a commercial fertilizer is misbranded if it carries a false or misleading statement on the container or the label attached to the container, or if false or misleading statements concerning it are disseminated in any manner or by any means. The bill specifies that a fertilizer is misbranded if:

1. its labeling is false or misleading,

2. the fertilizer is distributed under the name of another fertilizer product,

3. the fertilizer is not labeled as the bill or any regulations the commissioner adopts requires, or

4. the product is represented as a fertilizer or as containing a plant nutrient or fertilizer when it does not conform to regulatory requirements.

The bill explicitly prohibits the distribution of adulterated fertilizer. Under the bill, a fertilizer is considered adulterated if the commissioner determines the:

1. fertilizer contains any deleterious or harmful substance in sufficient amounts to render it injurious to beneficial plant life, animals, humans, aquatic life, soil, or water when applied in accordance with directions for use on its label;

2. label for such fertilizer does not contain adequate warning statements or directions for use necessary to protect plant life, animals, humans, aquatic life, soil, or water;

3. fertilizer's composition falls below or differs from that displayed on the label; or

4. fertilizer contains unwanted crop or weed seed.

The bill eliminates a penalty for fertilizer the commissioner finds to be short in weight.

Under current law, if, after examining any commercial fertilizer, the commissioner believes anyone has violated any applicable law or a regulation, he must notify the registrant, distributor, or possessor whose product was examined. These parties have the opportunity to a hearing before the commissioner. After the hearing if the commissioner determines a violation has occurred, he can bring the facts to the state's attorney for prosecution. If convicted, the person faces a fine of up to $ 500.

The bill removes the requirement that the commissioner bring the case to the state's attorney for prosecution, thus allowing the commissioner to impose the penalty directly. The bill expands the potential fine to $ 500 for each violation.

The bill also removes the provision allowing the commissioner the right to issue a warning in writing for minor violations instead of seeking prosecution and another explicitly requiring each proseccuting officer to whom any violation is reported to institute appropriate proceedings in the competent jurisdiction without delay.

The bill explicitly allows the commissioner to cooperate and enter into agreements with other state and town agencies, other states, and the federal government to carry out the purpose of the law and regulations.

1. “label” means the display of all written, printed, or graphic matter on a fertilizer container or a written statement accompanying a fertilizer;

2. “labeling” means all written, printed, or graphic matter on or accompanying any fertilizer, or advertisements, brochures, posters, television or radio announcements, and internet web site content used in promoting the sale of any fertilizer;

3. “investigational allowance” means an allowance for variations inherent in taking, preparing, and analyzing an official sample of fertilizer;

4. “deficiency” means the amount of nutrient found by analysis that is less than that guaranteed, which may result from a lack of nutrient ingredients or from lack of uniformity;

5. “blender” means any person or system in the business of blending fertilizer by using mobile or fixed equipment;

6. “blending” means the physical mixing or combining of the following to produce a uniform mixture (a) one or more fertilizer materials and one or more filler materials, (b) two or more fertilizer materials, or (c) two or more fertilizer materials and filler materials; and

7. “application” means the process of placing or using fertilizer on a targeted growing area.

The bill creates a grant program for milk producers and temporarily funds it by temporarily increasing a document recording fee as follows.

Under current law, people must pay town clerks a $ 30 fee for each document recorded in municipalities' land records. The bill temporarily increases this fee to $ 40 (from the effective date until July 1, 2011). By law, the town clerk retains $ 1 of the fee and $ 3 of the fee must become part of the municipality's general revenue and be used to pay for local capital improvement projects. Under current law, the town clerk must no later than the 15th of each month remit $ 26 of these fees received during the previous calendar month to the state treasurer for the “land protection, affordable housing and historic preservation account,” which is a separate, nonlapsing account in the General Fund. The bill temporarily increases the monthly remittance to $ 36 and renames the “land protection, affordable housing and historic preservation account,” the “Community Investment Account. ”

From the effective date until July 1, 2011, the bill exempts from this filing fee any document recorded on the land records that an employee of the state or of a municipality in conjunction with such employee's official duties files.

The bill defines “municipality” to include each town, consolidated town and city, city, consolidated town and borough, borough, and district, any municipal corporation or department thereof created by a special act of the General Assembly, and each municipal board, commission and taxing district not previously mentioned.

Under current law, the funds in the land protection, affordable housing and historic preservation account must be distributed equally, meaning 25% goes respectively to support programs of the Connecticut Commission on Culture and Tourism (CCCT), Connecticut Housing Finance Authority (CHFA), the Department of Environmental Protection (DEP), and DOAG. Specifically, under current law, the funds must be used by:

1. CCCT as follows: (a) $ 200,000, annually, to supplement the technical assistance and preservation activities of the Connecticut Trust for Historic Preservation, and (b) the remainder to supplement historic preservation activities;

2. CHFA to supplement new or existing affordable housing programs;

3. DEP for municipal open space grants; and

4. DOAG as follows: (a) $ 500,000 annually for the agricultural viability grant program; (b) $ 500,000 annually for the farm transition program; (c) $ 100,000 annually to encourage the sale of Connecticut Grown food to schools, restaurants, retailers, and other institutions and businesses in the state; (d) $ 75,000 annually for the Connecticut farm link program; and (e) the remainder for farmland preservation programs.

From the effective date until July 1, 2011, the bill decreases from 25% to 20%, the shares for CCCT, CHFA, and DEP programs and increases, from 25% to 40%, the share DOAG receives. It requires the remainder of the DOAG funds to go the agricultural sustainability account (for milk producer grants) that the bill establishes instead of for farmland preservation programs.

The bill allows DOAG to use a portion of the overall funds for the administration of farmland preservation programs. By law, each agency receiving funds may use up to 10% of the funds for administration of the programs for which the funds were provided.

The bill establishes the agricultural sustainability account as a separate, nonlapsing account within the General Fund. The DOAG commissioner must use the funds to make payments to Connecticut dairy farmers (“milk producers”). The bill defines a “milk producer” as a person, firm, or corporation registered as a producer of milk for pasteurization.

Federal law governs the price paid to dairy farmers for milk. Generally, USDA marketing orders set the price for milk and milk products by region. One order prescribes the price paid in New England and the Mid-Atlantic states. The order is broken down into class 1 (fluid) milk and various other classes of milk products. The bill defines the “federal pay price” as the northeast monthly uniform price for milk at Hartford zone pursuant to the U. S. Department of Agriculture Northeast Federal Milk Marketing Order.

Under the bill, for each month that the federal pay price is below the minimum sustainable monthly cost of production, the milk producer is entitled to an amount equal to the dollar amount that the federal pay price was below the minimum sustainable monthly cost of production, multiplied by the amount of milk the producer produced during the month. The bill sets the minimum sustainable monthly cost of production as 82% of the baseline determined by the U. S. Department of Agriculture's Economic Research Service monthly average cost of production for a New England state.

Beginning on the date of the first deposit into the agricultural sustainability account, a milk producer is entitled to a grant when the federal pay price for milk is below a certain level. The DOAG commissioner subsequently makes the grants to the milk producers on a quarterly basis, beginning three months after the first deposit. The commissioner must make the grants from the account.

Under the bill, if the amount of available funds in the agricultural sustainability account at the time the quarterly grants are due is less than the aggregate amount of grants to which producers are entitled, the commissioner must distribute all of the funds in the account to milk producers in proportion to their relative levels of milk production.

To assist DOAG in calculating these grants, the bill requires milk producers and handlers who receive milk from producers in the state to file with the DOAG commissioner information on the amount milk producers produce in a form and when commissioner directs. By law, a “handler” means any person, firm, corporation or cooperative association engaged in receiving, handling, distributing, or selling fluid milk or milk products, intended in whole or in part for bottling, manufacturing, processing, distribution, or sale in the state.

The bill also requires dairy farmers to have completed an energy audit to receive a grant. They must provide proof of the audit as the DOAG commissioner directs. The audit is based on existing law's standards. (The law requires the Department of Public Works commissioner and Office of Policy and Management secretary to establish and publish standards for life-cycle cost analysis for state-owned and -financed buildings to undergo before they are built or substantially renovated. This analysis estimates the cost of alternative heating, cooling, and other building systems over the building's life. )

The bill explicitly prohibits adulterating dairy products and selling, offering to sell, bartering, or exchanging them. It also prohibits:

1. selling, offering for sale, bartering, exchanging, manufacturing, distributing, or processing such products from an unlicensed facility or

2. selling, offering for sale, distributing, or offering for barter or exchange milk for pasteurization, retail raw milk, or retail raw milk cheese from an unregistered dairy farm. (By law, dairy product facilities must be licensed by, and dairy farms must be registered with, DOAG. )

Under the bill, violators commit (1) an infraction for the first violation and (2) a class A misdemeanor for the second or subsequent violation within a year of the first. (An infraction is not a crime but subjects the violator to a fee; a class A misdemeanor is punishable by up to one year in prison, a $ 2,000 fine, or both. ) The bill specifies that it does not prevent the DOAG commissioner from seeking any other remedy the law provides.

By law, the DOAG commissioner may tag or otherwise mark a dairy product that it is suspected of being adulterated or misbranded. Violators are subject to an administrative civil penalty.

The bill defines “adulterated” as any milk, milk product, retail raw milk, or cheese that:

1. bears or contains any poisonous or deleterious substance, which may render the dairy product injurious to health, provided, if the substance is not an added substance, the dairy product is not considered adulterated if the quantity of the substance would not ordinarily render it injurious to health;

2. bears or contains any added poisonous or deleterious substance that is unsafe;

3. consists in whole or part of any diseased, contaminated, filthy, putrid, or decomposed substance or is otherwise unfit for food;

4. has been produced, prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth or rendered diseased, unwholesome, or injurious to health; or

5. has packaging or a container which is composed in whole or part of any poisonous or deleterious substance, which may render the contents injurious to health.

The bill defines “misbranded” as the use of any label, written or printed advertising, or graphic upon or accompanying a product or container of milk, milk products, or cheese, including, signs, electronic displays, electronic communication, placards, or other means of communication intended to provide information to consumers, which is false or misleading or which violates any applicable municipal, state, or federal labeling requirement.

Infractions are punishable by fines, usually set by Superior Court judges, of between $ 35 and $ 90, plus an additional fee based on the amount of the fine and a $ 20 surcharge. An infraction is not a crime; thus, violators do not have criminal records and can pay the fine by mail without making a court appearance.

The Connecticut Food, Drug, and Cosmetic Act is intended, in part, to safeguard the public health and promote the public welfare by protecting consumers from harm caused by merchandising deceit.

The Connecticut act bans, among other things, the sale in intrastate commerce of food that is adulterated or misbranded (CGS § 21a-93). Among several grounds, a food is adulterated if any valuable part of it has been substituted wholly or in part (CGS § 21a-101). Among several grounds, a food is misbranded if (1) its labeling is false or misleading in any particular; (2) it is offered for sale under the name of another food; (3) it is a food for which no standard of identity has been established and (a) it falls below the standard of purity, quality, or strength which it purports or is represented to possess or (b) it does not bear its common or usual name of each ingredient, except that spices, flavorings, and colorings may be designated as such without being specifically named (CGS § 21a-102). The law deems federal Food, Drug and Cosmetic Act standards of identity to be state standards for enforcement purposes (CGS § 21a-100).

The act authorizes the Department of Consumer Protection (DCP) commissioner or his agents to embargo food that they have probable cause to believe violates the standards of identity requirements. Once the commissioner has embargoed an item, he has 21 days to either begin summary proceedings to confiscate it or to remove the embargo. Proceedings are held in Superior Court by complaint and verified by affidavit. The law stipulates what a complaint must include.

Once a verified complaint has been filed, the law requires the court to issue a warrant to seize the article and summon the person named in the complaint. The law requires the court to hold a hearing not less than five or more than 15 days from the date of the warrant. The court must order the food confiscated if it appears that it was offered for sale in violation of the act. If the food is not injurious to health and could be brought into compliance with the act if it is repackaged or relabeled, the court may order it delivered to its owner upon payment of court costs and provision of a bond to DCP assuring that the product will be brought into compliance (CGS § 21a-96).