H. B. 4074
(By Delegates Kelley, Yeager, Boggs, Ennis,
Willis, Campbell and Williams)
[Passed February 16, 2000; in effect ninety days from passage.]
AN ACT to amend and reenact sections one through eighteen, article
fifteen, chapter nineteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, all relating to
updating the West Virginia fertilizer law; expanding
regulation to products other than commercial fertilizer;
providing definitions; permitting the commissioner of
agriculture to set fees and certain administrative penalties
by rule; registration; labels; tonnage reports; inspection,
sampling and analysis; plant nutrient deficiencies; commercial
value; misbranding; adulteration; publications; rules; short
weight; cancellation of registrations; embargo orders;
seizure, condemnation and sale of product; violations and
criminal penalties; and exchanges between manufacturers.
Be it enacted by the Legislature of West Virginia:
That sections one through eighteen, article fifteen, chapter
nineteen of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted, all to read as
ARTICLE 15. WEST VIRGINIA FERTILIZER LAW.
§19-15-1. Definitions of words and terms.
(a) "Brand" means a term, design or trademark used in
connection with one or several grades of regulated product.
(b) "Bulk fertilizer" means fertilizer delivered to the
purchaser either in solid or liquid state in a nonpackage form to
which a label cannot be attached.
(c) "Commissioner" means the commissioner of agriculture of
the state of West Virginia or his or her duly authorized agent.
(d) "Compost" means a biologically stable material derived
from the composting process.
(e) "Custom media" means a horticultural growing medium
prepared to exact specifications of the person who will be planting
in the medium.
(f) "Department" means the department of agriculture of the
state of West Virginia.
(g) "Distribute" means to import, consign, to offer for sale,
sell, barter, warehouse or otherwise supply a regulated product in
(h) "Distributor" means any person who distributes a regulated
product in this state.
(i) "Embargo" means a written stop sale order issued by the
commissioner of agriculture prohibiting the sale, use of or
transportation of any regulated product in any manner until the
embargo is released by the commissioner.
(j)"Fertilizer" means any substance containing one or more
recognized plant nutrients, including natural organic fertilizer,
which is designed for use or claimed to have value in promoting
plant growth, except unmanipulated animal and vegetable manures,
marl, lime, limestone, wood ashes and gypsum, and other products
exempted by rule of the commissioner.
(k) "Fertilizer material" means a fertilizer which either:
(1) Contains important quantities of no more than one of the
primary plant nutrients: (nitrogen (N), available phosphate (P205)
and soluble potash (K20), or
(2) Has eighty-five percent or more of its plant nutrient
content present in the form of a single chemical compound, or
(3) Is derived from a plant or animal residue or by-product or
a natural material deposit which has been processed in such a way
that its content of primary plant nutrients has not been materially
changed except by purification and concentration.
(l) "Grade" means the percentage of total nitrogen, available
phosphate and soluble potash stated in whole numbers in the same terms, order and percentages as in the guaranteed analysis:
Provided, That specialty fertilizers may be guaranteed in
fractional units of less than one percent of total nitrogen,
available phosphate and soluble potash: Provided, however, That
fertilizer materials, bone meal, manures and similar raw materials
may be guaranteed in fractional units.
(m) "Guaranteed analysis" means the minimum percentage of
plant nutrients claimed in the following order and form:
(1) Total nitrogen (N) ................. percent
Available phosphate (P205) ........ percent
Soluble potash (K20) ............... percent
(2) For unacidulated mineral phosphatic materials and basic
slag, bone, tankage and other organic phosphatic materials, the
total available phosphate or degree of fineness may also be
(3) Guarantees for other plant nutrients may be permitted or
required by rule of the commissioner and shall be expressed in the
form of the element. The sources of such other nutrients (oxides,
salt, chelates, etc.) may be required to be stated on the
application for registration and may be included as a parenthetical
statement on the label. Other beneficial substances or compounds,
determinable by laboratory methods, also may be guaranteed by
permission of the commissioner. When any plant nutrients or other
substances or compounds are guaranteed, they shall be subject to inspection and analysis in accord with the methods and rules
prescribed by the commissioner.
(n) "Horticultural growing medium" means any substance or
mixture of substances promoted as or intended to function as a
commercial or consumer growing medium for the managed growth of
horticultural crops in containers.
(o) "Investigational allowance" means an allowance for
variations inherent in the collection, preparation and analysis of
an official sample of regulated product.
(p) "Label" means the display of all written, printed or
graphic matter upon the immediate container or statement
accompanying a regulated product.
(q)"Labeling" means all written, printed or graphic matter, upon or
accompanying any regulated product, or advertisements, brochures,
posters or electronic announcements used in promoting the sale of
(r) "Manufacture" means to produce, compound, mix, blend, or
in any way alter the chemical or physical characteristics of a
(s) "Manufacturer" means any person who manufactures a
(t) "Mixed fertilizer" means a fertilizer containing any
combination or mixture of fertilizer materials.
(u) "Natural organic fertilizer" means materials derived from either plant or animal products containing one or more elements
other than carbon, hydrogen, and oxygen which are essential for
plant growth. These materials may be subjected to biological
degradation processes under normal conditions of aging, rainfall,
sun-curing, air drying, composting, rotting, enzymatic, or
anaerobic/aerobic bacterial action, or any combination of these.
These materials may not be mixed with synthetic materials or
changed in any physical or chemical manner from their initial state
except by manipulations such as drying, cooking, chopping,
grinding, shredding, hydrolysis or pelleting.
(v) "Official sample" means any sample of regulated product
collected by the commissioner or his or her agent and designated as
"official" by the commissioner.
(w) "Percent" or "percentage" means the percentage by weight.
(x) "Person" means an individual, partnership, association,
firm or corporation.
(y) "Primary nutrients" means nitrogen (N), available
phosphate (P205) and soluble potash (K20).
(z) "Registrant" means the person who registers regulated
products under the provisions of this article.
(aa) "Regulated product" means any product governed by this
article, including any fertilizer, specialty fertilizer, soil
amendment and horticultural growing medium.
(bb) "Soil amendment" means any substance or mixture of substances, imported, manufactured, prepared or sold for manurial,
soil enriching or soil corrective purposes, or intended to be used
for promoting or stimulating the growth of plants, increasing the
productivity of plants, improving the quality of crops or producing
any chemical or physical change in the soil. The following are
exempt from the definition of "soil amendment": Fertilizer,
unmanipulated animal manures, horticultural growing medium,
agricultural liming materials, unmixed mulch and unmixed peat.
(cc) "Specialty fertilizer" means a fertilizer distributed
primarily for nonfarm use, such as home gardens, lawns, shrubbery,
flowers, house plants, golf courses, municipal parks, cemeteries,
greenhouses and nurseries.
(dd) "Synthetic" means any substance generated from another
material or materials by means of a chemical reaction.
(ee) "Ton" means a net weight of two thousand pounds
(ff) "Unmanipulated manure" means substances composed of the
excreta of domestic animals, or domestic fowls, which has not been
processed or conditioned in any manner, including, but not limited
to, processing or conditioning by drying, grinding, pelleting,
shredding, addition of plant food, mixing artificially with any
material or materials, other than those which have been used for
bedding, sanitary or feeding purposes for animals or fowls, or by
any other means.
(a) Any person or persons whose name appears upon the label of
any regulated product as manufacturer or distributor shall obtain
a permit to distribute in the state prior to distributing the
regulated product. The application for registration shall be
submitted to the commissioner on forms furnished or approved by the
commissioner, and shall be accompanied by a fee established by
(b) Each brand or grade of regulated product shall be
registered before being distributed in this state. The application
for registration shall be submitted to the commissioner on forms
furnished or approved by the commissioner, and shall be accompanied
by a fee established by legislative rule. Upon approval by the
commissioner a copy of the registration shall be furnished to the
applicant. All registrations expire on the thirtieth day of June
of the following year.
The application for fertilizer, soil amendment or
horticultural growing medium shall include the following
(1) The net weight;
(2) The brand and, in the case of fertilizer when primary
nutrients are claimed, the grade;
(3) The guaranteed analysis, or other information related to
ingredients, guaranteed analysis of ingredients, percentages of ingredients, source of ingredients, physical components, physical
properties or nutrient analysis as the commissioner may require;
(4) The purpose of the product;
(5) Directions for application; and
(6) The name and address of the registrant.
(c) A distributor is not required to register any regulated
product which is already registered under this article by another
person, providing the label does not differ in any respect.
(d) A distributor is not required to register each grade of
regulated product formulated according to specifications which are
furnished by a consumer prior to mixing, but is required to
register his or her firm in a manner and at a fee established by
legislative rule, and to label the regulated product as provided in
subsection (c), section three of this article.
(e) Any person applying for registration of a fertilizer or
specialty fertilizer, soil amendment or horticultural growing
medium shall include with the application a label and any
(f) The commissioner may require proof of any claims made for
any regulated product. If no claims are made, he or she may
require proof of the usefulness and value of the regulated product.
For evidence of proof the commissioner may rely on experimental
data, evaluations or advice supplied from such sources as the
director of the agricultural experiment station. The experimental design shall be related to state conditions for which the product
is intended. The commissioner may accept or reject other sources
of proof as additional evidence in evaluating regulated products.
(g) If the commissioner identifies any unregistered regulated
product in commerce or any regulated product from any nonregistered
manufacturer or distributor during the registration year, the
commissioner shall give the grantor a grace period of fifteen
working days from issuance of notification within which to register
the regulated product or distributor. Any person required to
register regulated products or as a distributor, who fails to
register within the grace period shall pay to the commissioner a
penalty fee as established by legislative rule in addition to the
registration fee. The commissioner may issue an embargo order on
any regulated product until the registration is issued.
(h) Exemptions for horticultural growing medium:
(1) Distribution of horticultural growing media planted with
live plant material is exempt from the labeling and registration
requirements of this article.
(2) Distribution of custom media is exempt from the
registration requirements of this article, if it is prepared for a
single end user.
(3) Distribution of horticultural growing media containing
plant nutrients of three percent or less are exempt from the
requirements of this article.
(a) Any regulated product distributed in this state in
containers shall have placed on or affixed to the container a label
setting forth in clearly legible and conspicuous form the
information required by subdivisions (1), (2), (3), (4), (5) and
(6), subsection (b), section two of this article. When compost is
used as an ingredient, the label shall identify the source of the
compost. A label may be in multiple languages, but one language
must be English.
(b) In case of bulk shipments, the same information required
on a label, in written or printed form, shall accompany delivery
and be supplied to the purchaser at time of delivery.
(c) A regulated product formulated according to specifications
which are furnished by a consumer prior to mixing shall be labeled
to show the net weight, guaranteed analysis of each ingredient,
guaranteed analysis of the finished product and the name and
address of the distributor.
§19-15-4. Inspection fees.
(a) There shall be paid to the commissioner for all
fertilizers distributed in this state an inspection fee established
by legislative rule: Provided, That sales to manufacturers or
exchanges between them are hereby exempted. Fees collected shall
be used for the payment of the costs of inspection, sampling and
analysis, and other expenses necessary for the administration of this article.
On individual packages of fertilizer containing ten pounds or
less, there shall be paid in lieu of a per ton inspection fee, an
inspection fee established by legislative rule for each brand and
grade sold or distributed. Where a person sells fertilizer in
packages over ten pounds the inspection fee for each brand or grade
shall apply only to that portion sold in packages of ten pounds or
less, and that portion sold in packages over ten pounds shall be
subject to the same per ton inspection fee provided by rule.
(b) Every person who distributes a fertilizer in this state
File with the commissioner on forms furnished or approved by
the commissioner a quarterly statement for the periods ending on
the thirtieth day of September, the thirty-first day of December,
the thirty-first day of March and the thirtieth day of June,
setting forth the number of net tons of each fertilizer distributed
in this state during such quarter. The report shall be due on or
before the thirtieth day of the month following the close of each
quarter and upon such statement shall pay the inspection fee at the
rate stated in subsection (a) of this section.
If the tonnage report is not filed and the payment of
inspection fee is not made within thirty days after the end of the
quarter, a collection fee established by legislative rule shall be
assessed against the registrant, and the amount of fees due shall constitute a debt and become the basis of a judgment against the
(c) When more than one person is involved in the distribution
of a fertilizer, the last person who has the fertilizer registered
or distributes to a nonregistrant (dealer or consumer) is
responsible for reporting the tonnage and paying the inspection
fee, unless the report and payment is made by a prior distributor
of a fertilizer.
§19-15-5. Tonnage reports.
The person transacting, distributing or selling fertilizer to
a nonregistrant shall furnish the commissioner a report showing the
county of the consignee, the amounts (tons) of each grade of
fertilizer, and the form in which the fertilizer was distributed
(bags, bulk, liquid, etc.). This information shall be reported by
one of the following methods: (a) Submitting a summary report
approved by the commissioner on or before the fifteenth day of each
month covering shipments made during the preceding month; or (b) by
electronic transfer using the UFTRS system or other electronic
system approved by the commissioner. No information furnished to
the commissioner under this section may be disclosed in such a way
as to divulge the operation of any person. The commissioner shall
assess a late fee established by legislative rule against the
registrant who is responsible for reporting if the monthly report
is not filed by the due date.
§19-15-6. Inspection, sampling and analysis.
(a) It is the duty of the commissioner, who may act through
his or her authorized agent, to sample, inspect, make analyses of,
and test regulated products distributed within this state at any
time and place and to such an extent as he or she may consider
necessary to determine whether such regulated products are in
compliance with the provisions of this article. The commissioner
individually or through his or her agent is authorized to enter
upon any public or private premises or carriers during operating
hours in order to have access to regulated products subject to the
provisions of this article and the rules pertaining thereto, and to
the records relating to their distribution.
(b) The methods of sampling and analysis to determine plant
food deficiencies in fertilizer or deficiencies in other regulated
products shall be those established by the Association of American
Plant Food Control Officials and AOAC International or other
methods approved by the commissioner by legislative rule.
(c) The commissioner, in determining for administrative
purposes whether any fertilizer is deficient in plant food, or
whether any other regulated product in compliance with this article
shall be guided solely by the official sample as defined in
subsection(v), section one of this article, and obtained and
analyzed as provided for in subsection (b) of this section.
(d) The results of official analysis of regulated products and portions of official samples, shall be distributed by the
commissioner as provided by legislative rule. The results of
official analysis of fertilizers and portions of official samples
shall be distributed by the commissioner as provided by legislative
rule. Official samples establishing a penalty for nutrient
deficiency shall be retained for a minimum of thirty days from
issuance of a deficiency report.
(a) Penalty for nitrogen, available phosphate and soluble
potash. -- If the analysis shall show that a fertilizer is
deficient in one or more of its guaranteed primary plant nutrients
(N-P-K) beyond the "investigational allowances" established by
rule, or if the overall index value of the fertilizer is below the
level established by rule, a penalty of three times the commercial
value of such deficiency shall be assessed.
(b) Penalty for soil amendment. -- If the analysis shows
that any soil amendment falls short of the guaranteed analysis in
any one soil amending ingredient or in total soil amending
ingredients, a penalty shall be assessed in favor of the
commissioner. A penalty of three times the value of the total soil
amending ingredient deficiency shall be assessed when the total
deficiency is more than two percent under the calculated total soil
amending ingredient guarantee.
(c) Penalty for other deficiencies. -- Deficiencies beyond the investigational allowances established by rule in any other
constituent which the registrant is required to or may guarantee
shall be evaluated and penalties prescribed by the commissioner.
(d) Nothing contained in this section shall prevent any person
from appealing to a court of competent jurisdiction praying for
judgment as to the justification of such penalties.
(e) All penalties assessed under this section shall be paid to
the consumer of the lot of regulated product represented by the
sample analyzed. Within three months after the date of notice from
the commissioner to the registrant, the penalty shall be collected
and promptly forwarded to the commissioner. If the consumers
cannot be found, the amount of penalty shall be paid to the
commissioner and deposited in the department of agriculture's fees
(f) A deficiency in an official sample of mixed fertilizer
resulting from nonuniformity is not distinguishable from a
deficiency due to actual plant nutrient shortage and is properly
subject to official action.
(g) If, upon evidence satisfactory to the commissioner, a
person is found to have: (1) Altered the content of any regulated
product shipped to him by a registrant; or (2) mixed or commingled
regulated product from two or more suppliers so that the result of
either alteration changes the analysis of the regulated product as
originally guaranteed, then the person who has altered, mixed or commingled shall become responsible for obtaining a registration,
as the case may be; shall be held liable for all assessments; and
shall be subject to other provisions of this article, including, by
way of example, but not by way of limitation, seizure, condemnation
§19-15-8. Commercial value.
For the purpose of determining the commercial values to be
applied under the provisions of section seven of this article, the
commissioner shall determine and publish annually the values per
unit of nitrogen, available phosphate and soluble potash in
fertilizers in this state. The commissioner shall determine from
the registrant's sales invoice the values charged for the soil
amending ingredients. If no invoice is available or if the invoice
fails to provide sufficient information the commissioner may use
other methods to determine values. The value so determined and
published shall be used in determining and assessing penalty
No person shall distribute misbranded regulated products. A
regulated product is considered to be misbranded:
(a) If its label is false or misleading in any particular;
(b) If it is distributed under the name of another regulated
(c) If it is not labeled as required in section three of this article and in accordance with rules prescribed under this
(d) If it purports to be, to contain or is represented as a
fertilizer, plant nutrient, soil amendment, or horticultural
growing medium, but is not according to the definition prescribed
by rule of the commissioner. In the adopting of legislative rules
defining these terms the commissioner shall give regard to commonly
accepted definitions and official terms such as those issued by the
Association of American Plant Food Control Officials (AAPFCO).
No person may distribute an adulterated regulated product. A
regulated product is considered to be adulterated:
(a) If it contains any deleterious or harmful ingredient in
sufficient amount to render it injurious to beneficial plant life,
animals, humans, aquatic life, soil or water when applied in
accordance with directions for use on the label, or if adequate
warning statements or directions for use, which may be necessary to
protect plant life, animals, humans, aquatic life, soil or water
are not shown upon the label;
(b) If its composition falls below or differs from that which
it is purported to possess by its labeling; or
(c) If it contains unwanted crop seed, weed seed or noxious
weed seed, as defined in article 16, chapter 19 of the West
Virginia Seed Law.
(d) If adulteration levels of one or more metals in regulated
products are in excess of those officially adopted by the
Association of American Plant Food Control Officials.
The commissioner shall publish at least annually and in such
forms as he or she may consider proper: (a) Information concerning
the distribution of regulated products; and (b) results of analysis
based on official samples of regulated products distributed within
the state as compared with the analysis guaranteed under sections
two and three of this article.
The commissioner may propose rules for legislative approval in
accordance with the provisions of article three, chapter twenty-
nine-a of this code. The commissioner may enforce such rules
relating to investigational allowances, definitions, records, fees
and the distribution of regulated products as may be necessary to
carry into effect the full intent and meaning of this article,
including protection of the environment.
§19-15-13. Short weight.
If any regulated product in the possession of the distributor
or retailer is found by the commissioner to be short in weight, the
registrant of the regulated product shall, within thirty days after
official notice from the commissioner, pay to the consumer a
penalty established by legislative rule.
§19-15-14. Cancellation of registrations.
The commissioner is authorized and empowered to cancel the
registration of any brand of regulated product or to refuse to
register any brand of regulated product upon satisfactory evidence
that the registrant has used fraudulent or deceptive practices in
evading or attempting to evade the provisions of this article or
rule promulgated thereunder: Provided, That no registration may be
revoked or refused until the registrant is given the opportunity to
appear for a hearing conducted by the commissioner.
§19-15-15. Embargo orders.
The commissioner may issue and enforce a written or printed
embargo order requiring the owner or custodian of any lot of
regulated product to hold it at a designated place, when the
commissioner finds the regulated product is being offered or
exposed for sale in violation of any of the provisions of this
article, until the law has been complied with and the regulated
product is released in writing by the commissioner, or until the
violation has been otherwise legally disposed of by written
authority. The commissioner shall release the regulated product
embargoed when the requirements of the provisions of this article
have been complied with and all costs and expenses incurred in
connection with the embargo have been paid.
§19-15-16. Seizure, condemnation and sale.
Any lot of regulated product not in compliance with the
provisions of this article is subject to seizure on complaint of
the commissioner to a court of competent jurisdiction in the county
or judicial circuit where the product is located. In the event the
court finds that the regulated product is in violation of this
article and orders its condemnation, the product may be disposed of
in any manner consistent with its quality and the laws of the
state: Provided, That in no instance may the disposition of the
regulated product be ordered by the court without first giving the
claimant an opportunity to apply to the court for its release or
for permission to process or relabel the regulated product to bring
it into compliance with this article.
(a) If it appears from the examination of any regulated
product that any of the provisions of this article or the rules
issued thereunder have been violated, the commissioner shall cause
notice of the violation to be given to the registrant, distributor
or possessor from whom the sample was collected. Any person so
notified shall be given an opportunity to be heard under
legislative rules proposed and promulgated by the commissioner. If
it appears after the hearing, either in the presence or absence of
the person so notified, that any of the provisions of this article
or rules issued thereunder have been violated, the commissioner may
prosecute in any court of competent jurisdiction any person violating the provisions of this article.
(b) Any person convicted of violating any provisions of this
article or rules issued thereunder is guilty of a misdemeanor and,
upon conviction thereof, shall be fined not less than one hundred
dollars nor more than two hundred dollars for the first offense and
not less than two hundred dollars nor more than five hundred
dollars for each subsequent offense.
(c) Nothing in this article may be construed as requiring the
commissioner or his or her agent to report for prosecution or for
the institution of seizure proceedings as a result of minor
violations of the article when he or she believes that the public
interest will be best served by a suitable notice of warning in
(d) It is the duty of each prosecuting attorney to whom any
violation is reported to cause appropriate proceedings to be
instituted and prosecuted in a court of competent jurisdiction
(e) The commissioner is hereby authorized to apply for and the
court to grant a temporary or permanent injunction, to be issued
without bond, restraining any person from violating or continuing
to violate any provision of this article or rule promulgated
thereunder notwithstanding the existence of other remedies at law.
§19-15-18. Exchanges between manufacturers.
Nothing in this article may be construed to restrict or avoid sales or exchanges of regulated products between importers,
manufacturers or manipulators who mix regulated materials for sale,
or to prevent the free and unrestricted shipment of regulated
products to manufacturers or manipulators who have registered their
brands as required by the provisions of this article.