PA 09-229—sSB 891

Environment Committee

Finance, Revenue and Bonding Committee

Judiciary Committee

Planning and Development Committee

Appropriations Committee

AN ACT CONCERNING MILK PRODUCERS, MILK AND MILK PRODUCTS, AGRICULTURAL NOT-FOR-PROFIT ORGANIZATIONS AND THE MODERNIZATION OF CONNECTICUT FERTILIZER LAW

SUMMARY: This act creates a grant program for dairy farmers (“milk producers”); changes the law concerning adulterated milk, milk regulation, and eligibility for certain grants; and updates the laws regulating fertilizer.

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

The act 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 these prohibitions.

The act 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.

The act eliminates nonprofit agriculture organizations' eligibility for DOAG's farm transition grant program. It instead (1) makes these entities eligible for DOAG's farm viability matching grant program and (2) adds the development of new marketing programs and venues through or in which a majority of products sold are state grown to that grant's purposes (see BACKGROUND).

The act replaces the former fertilizer law, which was based on a 1965 recommended model law from the Association of American Plant Food Control Officials (AAPFCO), with AAPFCO's 2008 recommended version. The act supersedes any inconsistent or conflicting special acts, municipal ordinances, or regulations concerning fertilizer. 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 DOAG commissioner's enforcement powers to regulations he adopts and allows anyone aggrieved by the enforcement actions to appeal to Superior Court.

The act makes numerous minor, conforming, and technical changes.

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

27-30 GRANTS FOR MILK PRODUCERS

The act creates a grant program for milk producers and funds it by temporarily increasing a document recording fee and rearranging how the fee revenues are distributed. It establishes the agriculture sustainability account and a formula for awarding grants based on the price of milk, which is federally set; the federally determined sustainability price; and the amount of milk a producer's operation produces in a month.

Document Recording Fee Increased, State and Municipal Exemption

Under prior law, people paid town clerks a $30 fee for each document recorded in municipalities' land records. The act temporarily increases this fee to $40 (from the effective date until July 1, 2011) and redistributes the revenues. By law, the town clerk retains $1 of the fee and $3 goes to the municipality's general revenue and must be used to pay for local capital improvement projects. Under prior law, the town clerk, by the 15th of each month, had to remit $26 of each fee received during the previous calendar month to the state treasurer for credit to the “Land Protection, Affordable Housing and Historic Preservation Account,” which is a separate, nonlapsing account in the General Fund. The act temporarily increases the monthly remittance to $36 and renames the account the “Community Investment Account” (CIA).

The act extends the existing exemption from the filing fee of any document recorded by a municipal or state employee in conjunction with the employee's official duties.

Document Recording Fee Distribution

Under prior law, document recording fee revenues had to be distributed equally and quarterly to support Connecticut Commission on Culture and Tourism (CCCT), Connecticut Housing Finance Authority (CHFA), Department of Environmental Protection (DEP), and DOAG programs. Each entity received 25% of the funds for specific purposes. From the effective date until July 1, 2011, the act decreases, from 25% to 20%, the shares for CCCT, CHFA, and DEP programs and increases, from 25% to 40%, DOAG's share. It requires the new DOAG funds to go into an Agricultural Sustainability Account (for milk producer grants) that the act establishes. It also requires that any funds which are remaining after supporting DOAG programs under existing law go into the Agricultural Sustainability Account. Under prior law, any remaining funds went to support farmland preservation programs.

The act allows DOAG to use a portion of its total receipts to administer farmland preservation programs. By law, each agency may use up to 10% of the funds it receives for administrative costs.

Agriculture Sustainability Account

The act establishes the Agricultural Sustainability Account as a separate, nonlapsing General Fund account and requires the additional document recording fee revenues to be placed in it. The DOAG commissioner must use the account for grants to Connecticut milk producers. The act establishes a formula for paying milk producers based on (1) the federally set milk price and (2) the amount needed to sustain state dairy operations, as determined by the U. S. Department of Agriculture (USDA). The act defines a “milk producer” as a person, firm, or corporation registered as a producer of milk for pasteurization.

Milk Pricing

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 sets the price paid in the New England and Mid-Atlantic states. The order is broken down into class 1 (fluid) milk and various other classes of milk products. The act defines the “federal pay price” as the northeast monthly uniform price for milk in the Hartford zone pursuant to the USDA Northeast Federal Milk Marketing Order.

Grant Formula and Disbursement

Under the act, for each month that the federal pay price is below the minimum sustainable monthly cost of production, a milk producer is entitled to an amount equal to the difference between the federal pay price and the minimum sustainable monthly cost of production, multiplied by the amount of milk the producer produced during the month. The act sets the minimum sustainable monthly cost of production as 82% of the baseline determined by USDA's Economic Research Service monthly average cost of production for a New England state.

An eligible milk producer is entitled to a grant beginning on the date of the first deposit into the Agricultural Sustainability Account. Three months after that first deposit, the DOAG commissioner must make the grants on a quarterly basis.

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

Criteria for Grant Eligibility

To assist DOAG in calculating these grants, the act requires milk producers and handlers who receive milk from producers in the state to file information with the DOAG commissioner 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 act also requires milk producers to have completed an energy audit to receive a grant. They must provide proof of the audit, based on existing law's standards, as the DOAG commissioner directs. (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. )

23 — 24 ADULTERATED MILK PROHIBITIONS AND VIOLATIONS

Under existing law, the agriculture commissioner must prohibit the sale or distribution of dairy products that (1) are insanitary or detrimental to health and (2) have not been produced, processed, cared for, or handled as the law and regulations require. The act 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 bartering or exchanging 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 act, violators commit (1) an infraction for the first violation of an order and (2) a class A misdemeanor for the second or subsequent violation within a year of the first (see Table on Penalties. ) The act 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.

Adulterated and Misbranded Dairy Products

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

1. bears or contains any poisonous or deleterious substance that may render the product injurious to health, except, if the substance is not added during production, the 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 that is composed in whole or part of any poisonous or deleterious substance, which may render the contents injurious to health.

The act defines “misbranded” as the use of any label, written or printed advertising, or graphic on or accompanying a product or container of milk, milk products, or cheese, including signs, electronic displays or communication, placards, or other means of communication intended to inform consumers that is false, misleading, or violates any applicable municipal, state, or federal labeling requirement (see BACKGROUND).

CONNECTICUT FERTILIZER LAW OF 2008

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

The act requires the DOAG commissioner to adopt regulations as he finds necessary regarding fertilizer. It specifies that the commissioner or his duly authorized agent administer and enforce fertilizer laws and regulations.

Definition of Fertilizer

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

5 — 7 & 12 — REGISTRATION, FEES, LABELING, AND REPORTING

The law requires each brand and grade of fertilizer to be registered annually before it can be distributed in the state. The act 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 continues to require the label to include the brand and grade but waives the grade requirement when no primary nutrients are claimed. It requires the label to include directions for use for fertilizer distributed to the end user.

Registration Fee

The act 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 prior law, the fee was $15 per major and minor element for each brand and grade listed on the application, up to $90 per individual product.

Inspection Fee

The act requires each distributor to pay an inspection fee for all fertilizer distributed to nonregistrants in Connecticut. Under prior law, the commissioner established this fee through regulation, but it had to be at least 25 per ton. The act sets the fee at 25 per ton, with a $10 minimum fee and exempts from the fee (1) all sales and exchanges between manufacturers and (2) sales by distributors.

12 — Fertilizer Registration Report

The act 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 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. Under prior law this information was protected and could not be disclosed in a way that divulged 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 distributes it 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 act 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 fertilizer; and

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

He or she must submit the report to the commissioner by July 30 for distributions or sales made during the preceding 12 months.

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

Distributor's Annual Statement

By law, anyone who distributes fertilizer in the state must 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 fertilizer distributed in the state. Under prior law, the report, and required inspection fee, were due on or before July 15th. The act changes the due date to July 30.

15 — FERTILIZER USE AND STORAGE

The act 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.

8 — INSPECTIONS

The law permits the DOAG commissioner or his authorized agent to enforce fertilizer statutes. The act expands his access for this purpose. Under prior law, the commissioner or his agent was limited to normal business hours when (1) entering any factory, warehouse, or establishment in the state where commercial fertilizers are manufactured, processed, packed, or held for distribution; (2) entering any vehicle used to transport or hold fertilizers; and (3) inspecting, in a reasonable manner, buildings, vehicles and pertinent equipment, finished and unfinished materials, containers, and labeling.

The act specifies that the commissioner or agent may also enforce fertilizer regulations and allows investigations outside of normal business hours.

Under prior law, analytical methods and sampling had 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 act instead requires that they be those adopted by the Association of Official Analytical Chemists International.

By 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 act 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.

8-9 & 17 — FERTILIZER CONTENT AND PENALTIES

Penalties

The 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 the commissioner notifies them and promptly forward receipts to him. Similar to prior law, if a consumer cannot be found, the penalty must be paid to the commissioner for deposit in the General Fund. Under prior law, this applied only to purchases of one ton or more of fertilizer. The act eliminates the one-ton threshold and the requirement for receipts.

Similar to prior law, a penalty is imposed if analysis shows a fertilizer is deficient in one or more of its guaranteed primary plant nutrients beyond the investigational allowances and compensations. Under the act, the commissioner must assess a penalty of three times the value of any deficiency against the violator instead of varying penalties based on content.

When Subject to Penalties

Under the act, 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 act or regulations, including seizure, condemnation, and the commissioner's stop-sale order.

The act specifies that a deficiency in an official sample of mixed fertilizer resulting from nonuniformity is the same as deficiency due to actual plant nutrient shortage and subject to action by the commissioner.

Under the act, 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. Under existing law, the commissioner may refuse to register any fertilizer brand with satisfactory evidence that the registrant or applicant for registration used fraudulent or deceptive practices to evade or attempt to evade the fertilizer laws or regulations. Under prior law, the commissioner could cancel any fertilizer brand with such satisfactory evidence.

The act specifies that it does not prevent anyone from commencing an action in Superior Court for damages or penalty payments relating to fertilizer or fertilizer material.

18 — 19, & 33 — Lot “Stop Sale, Use, or Removal” and Seizure

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 or legally disposed. The act extends this enforcement power to any regulations the commissioner adopts.

The act eliminates the requirement that the commissioner seek a court order to seize any fertilizer lot 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 act requires the owner or custodian of a fertilizer lot who has been issued a stop sale, use, or removal order to be given the opportunity for a hearing by the commissioner or his designee.

The act 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, processed, or relabeled to bring it in compliance with the law.

11 & 13 — Misbranded and Adulterated Fertilizer

The law prohibits distributing misbranded fertilizer. The act expands what constitutes misbranded fertilizer. Under prior law, a commercial fertilizer was misbranded if it carried a false or misleading statement on the container or the label attached to the container, or if false or misleading statements concerning it were disseminated in any manner or by any means. The act maintains that a fertilizer is misbranded if its labeling is false or misleading, as well as if it is:

1. distributed under the name of another fertilizer product,

2. not labeled as the act or any regulations the commissioner adopts requires, or

3. represented as a fertilizer or as containing a plant nutrient or fertilizer when it does not conform to regulatory requirements.

The act explicitly prohibits the distribution of adulterated fertilizer. 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 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.

20 — VIOLATIONS

By law, when, after examining a fertilizer, the commissioner believes anyone has violated an applicable law or regulation, he has to notify the registrant, distributor, or possessor whose product was examined. These parties have the opportunity to a hearing before the commissioner. Under prior law, if after the hearing the commissioner determined a violation had occurred, he could bring the facts to the state's attorney for prosecution. If convicted, the person faced a fine of up to $500.

The act 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 act expands the potential fine to $500 for each violation.

The act also eliminates (1) a provision allowing the commissioner to issue a warning in writing for minor violations instead of seeking prosecution and (2) another explicitly requiring each prosecuting officer to whom any violation is reported to institute appropriate proceedings in the competent jurisdiction without delay.

22 — GOVERNMENT COOPERATION IN FERTILIZER REGULATION

The act 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.

4 — DEFINITIONS

The act adds several new definitions to the fertilizer law, including:

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.

BACKGROUND

Farm Transition and Farm Viability Matching Grant Programs

The farm transition program provides matching grants for diversifying 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. 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.

Adulterated or Misbranded Food and the Connecticut Uniform Food, Drug and Cosmetic Act (CGS 21a-93 to -125)

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. It bans, among other things, the sale in intrastate commerce of food that is adulterated or misbranded. A food is adulterated if, among other things, any valuable part of it has been substituted wholly or in part. A food is misbranded if, among other things, (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 it (a) falls below the standard of purity, quality, or strength which it purports or is represented to possess or (b) 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. The law deems federal Food, Drug and Cosmetic Act standards of identity to be state standards for enforcement purposes.

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