Chapter 433-A: Horticultural Growing Media

This chapter may be cited as the "New Hampshire Horticultural Growing Media Act."

This chapter shall be administered by the commissioner of the department of agriculture, markets, and food. The commissioner shall adopt rules under RSA 541-A necessary to the proper enforcement and administration of this chapter.

In this chapter:

I. "Brand or product name" means a specific designation applied to an individual horticultural growing medium.

II. "Bulk" means not in a package or in packages of one cubic yard or more.

III. "Commissioner" means the commissioner of the department of agriculture, markets, and food.

IV. "Custom medium" means a horticultural growing medium which is prepared to exact specifications of the person who will be planting in the medium.

V. "Distribute" means to offer for sale, sell, barter, or exchange, or otherwise supply or make available.

VI. "Horticultural growing medium" means any substance or mixture of substances which is promoted or is intended to function as a commercial or consumer growing medium for the managed growth of horticultural crops in containers.

VII. "Label" means the display of all written, printed, or graphic matter on or attached to the immediate container or, in the case of a bulk product, accompanying the lot of horticultural growing medium. Registration documents provided by manufacturers to the commissioner shall not be part of the product label.

VIII. "Labeling" means, in addition to the label, any written, printed, or graphic matter accompanying any horticultural growing medium; any advertisements, brochures, or posters; or any television, radio, or other announcements used in promoting the sale of a horticultural growing medium. Registration documents provided by manufacturers to the commissioner shall not be part of product labeling.

IX. "Person" means individuals, partnerships, corporations, other organized bodies or entities, or any combination of them.

X. "Registrant" means the person whose name appears on the label of a horticultural growing medium and who is responsible for labeling and guaranteeing such medium label claims.

XI. "Verification of label claims" means the information of an explanatory nature describing how the registrant determined the truthfulness and accuracy of the registrant's words or statements describing the product according to recognized standards.

The commissioner may inspect or cause to be inspected by duly authorized employees any products sold as horticultural growing media. For this purpose, the commissioner shall have the power to enter into or upon any point of sale during operating hours upon notice and to open and sample any bulk material, bundle, package, or other container containing or thought to contain any horticultural growing medium or to inspect labels.

The commissioner may adopt such rules under RSA 541-A as the commissioner deems necessary to ensure the accuracy or truthfulness of labels, labeling, registration documents, and content of horticultural growing media, including but not limited to:

I. Requiring that all registrants of horticultural growing media register each product name with the commissioner and supply the commissioner with a complete label for each product name.

II. Require every person registering any horticultural growing medium in this state to furnish on forms supplied by the commissioner such information as the commissioner may require on labeling, verification of label claims, or composition of any horticultural growing medium.

III. Requiring that all registrants of horticultural growing media supply analyses of horticultural growing media they have distributed, upon request of the commissioner.

IV. Specifying the contents of the label and the manner of expressing the contents required on each package or accompanying each bulk shipment of horticultural growing media, provided that product labels shall not require terms or manners of expression which shall interfere with interstate commerce.

The commissioner shall collect a $96 annual registration and inspection fee for each product registered. The fees collected under this section shall be deposited with the state treasurer into the agricultural products regulatory fund established in RSA 435:20, IV. Moneys from the fund shall be used to offset costs associated with registration and inspection of horticultural growing media.

I. Distribution of horticultural growing media planted with live plant material is exempt from the labeling and registration requirements imposed pursuant to this chapter.

II. Distribution of horticultural growing media that is sold to consumers at the site of production and is not distributed by other means or intended for commercial use is exempt from the registration requirements imposed pursuant to this chapter.

III. Distribution of custom media is exempt from registration requirements imposed pursuant to this chapter provided it is prepared for a single end user.

IV. Distribution of horticultural growing media with applied plant nutrients shall be exempt from the requirements of RSA 431:1-20.

The commissioner is authorized to revoke registrations of any person or to refuse to register horticultural growing media upon satisfactory evidence that the registrant or person has used fraudulent or deceptive practices in the evasion or attempted evasion of the provisions of this chapter or of any rules adopted under this chapter. No registration shall be revoked or denied until the registrant or person has been notified by certified mail, return receipt requested, of the time and place of the hearing and has been given an opportunity to appear and be heard by the commissioner or an authorized representative.

The commissioner may issue and enforce a written or printed "stop sale, use, or removal" order to the owner or custodian of any lot of horticultural growing media and to hold at a designated place when the commissioner finds the horticultural growing media is being offered or exposed for sale in violation of any of the provisions of this chapter until the law has been complied with and such horticultural growing media is released in writing by the commissioner, or the violation has been otherwise legally disposed of by written authority. The commissioner shall release the horticultural growing media so withdrawn when the requirements of the provisions of this chapter have been complied with and all costs and expenses incurred, as established by rule, in connection with the withdrawal have been paid.

The commissioner is authorized to apply for and the court is authorized to grant a temporary or permanent injunction restraining any person from violating or continuing to violate any of the provisions of this chapter or any rule adopted under this chapter notwithstanding the existence of other remedies at law. Any such injunction shall be issued with bond.

It shall be unlawful for any person to:

I. Distribute an unregistered horticultural growing medium, unless exempted from the registration requirements of this chapter.

II. Distribute a horticultural growing medium if the label on such medium does not reflect its composition.

III. Fail to supply the commissioner with analyses of horticultural growing media when requested by the commissioner or a person authorized by the commissioner under this chapter to make such requests.

IV. Distribute an adulterated horticultural growing medium. Such medium shall be deemed to be adulterated if:

(a) It contains any deleterious or harmful ingredient in sufficient amount to render it injurious to beneficial plant, animal, human, or aquatic life or to 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, animal, human, or aquatic life or soil or water are not shown upon the label.

(b) Its composition falls below or differs significantly from that which it is purported to possess by its labeling.

(c) It contains viable weed seed exceeding the amounts specified in RSA 433:4, I(d)-(e).

V. Fail to cease distribution of any horticultural growing medium for which the commissioner has issued a stop sale order.

VI. Obstruct the commissioner in the performance of the commissioner's duties under this chapter.

I. Any person who, individually or through a servant or agent, violates any provision of this chapter or rule adopted under this chapter shall be guilty of a misdemeanor. For any subsequent offense, a person shall be guilty of a misdemeanor if an individual, or guilty of a felony if any other person.

II. Any person who violates any provision of this chapter or any rule adopted or order issued under this chapter shall, in addition, be liable for a civil forfeiture not to exceed $5,000 for each violation, for each day of a continuing violation, which may be collected in a civil action or in connection with an action for injunctive relief brought by the attorney general.

III. Any person who violates any provision of this chapter, or any rule or order of the commissioner, shall be subject to the imposition of an administrative fine levied by the commissioner, not to exceed $1,000 for each violation.