CHAPTER 70

AN ACT TO AMEND CHAPTER 15, TITLE 3, DELAWARE CODE, ENTITLED "SEEDS" BY REPEALING THE PRESENT PROVISIONS AND SUBSTITUTING NEW ADMINISTRATIVE AND SUBSTANTIVE PROVISIONS.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Chapter 15, Title 3, Delaware Code is repealed and a new Chapter 15 enacted in lieu thereof to read as follows:

CHAPTER 15. SEEDS

§ 1501. Definitions

As used in this chapter--

"Advertisement" means all representations, other than those on the label, disseminated in any manner or by any means, relating to seed within the scope of this chapter.

"Agricultural seed" includes the seeds of grass, forage, cereal and fiber crops and any other kinds of seeds commonly recognized within this State as agricultural seeds, lawn seeds and mixtures of such seeds, and may include noxious weed seeds when the State Board of Agriculture determines that such seed is being used as agricultural seed.

"Certified", "registered", "foundation" or any other terms conveying similar meaning when referring to seeds means seed which has been produced or collected, processed and labeled in accordance with the procedures and in compliance with the rules and regulations of an officially recognized certification agency or agencies. Officially recognized means recognized and designated by the laws or regulations of any state, the United States, and any province of Canada, or the government of any foreign country whose certification standards are recognized by the International Crop Improvement Association.

"Hybrid" means the first generation of seed of a cross produced by controlling the pollination and by combining (1) two, three or four inbred lines; (2) one inbred or a single cross with an open-pollinated variety; or (3) two varieties or species, except open-pollinated varieties of corn (Zea mays). The second generation and subsequent generations from such crosses shall not be regarded as hybrids. Hybrid designations shall be treated as variety names.

"Kind" means one or more related species or sub-species which singly or collectively is known by one common name, for example, corn, oats, alfalfa, and timothy.

"Labeling" includes all labels, and other written, printed, or graphic representations, in any form whatsoever, accompanying or pertaining to any seed whether in bulk or in containers, and includes representations on invoices.

"Lot" means a definite quantity of seed identified by a lot number or other mark, every portion or bag of which is uniform within recognized tolerances for the factors which appear in the labeling.

Noxious weed seeds are divided into two classes--"Prohibited Noxious Weed Seeds" and "Restricted Noxious Weed Seeds" as defined in (1) and (2) of this subsection:

(1) "Prohibited Noxious Weed Seeds" are the seeds of perennial weeds such as not only reproduce by seed but also spread by underground roots, stems, and other reproductive parts, and which when well established, are highly destructive and difficult to control in this State by ordinary good cultural practice, and the seed of which is prohibited by this sub-title. Prohibited noxious weed seeds in this State are the seeds of:

(i) Cirsium arvense, Canada thistle

(ii) Agropyron repens, Quackgrass

(iii) Sorghum halepense, Johnson grass and such other seeds or bulblets as the State Board of Agriculture from time to time may designate as prohibited noxious seeds in the public interest.

(2) "Restricted Noxious Weed Seeds" are the seeds of such weeds as are very objectionable in fields, lawns and gardens of this State, but can be controlled by good cultural practices, and the seed of which is restricted by this sub-title. Restricted noxious weed seeds in this State are the seeds of:

(iv) Cuscuta spp., Dodder

(v) Convolvulus arvensis, Bindweed

(vi) Allium spp., Wild onion, wild garlic

(vii) Agrostemma githago, Corn cockle

(viii) Solanum carolinense, Horse nettle

(ix) Bromus secalinus, Cheat or Chess and such other seeds or bulblets as the State Board of Agriculture from time to time may designate as restricted noxious seeds in the public interest.

"Person" includes any individual, partnership, corporation, company, society, or association.

"Private hearing" may consist of a discussion of facts between the person charged and the enforcement officers.

"Pure seed", "germination", and other seed labeling and testing terms in common usage shall be defined as in the rules for seed testing published by the Association of Official Seed Analysts, and as subsequently amended.

"Record" includes all information relating to the shipment or shipments involved and includes a file sample of each lot of seed.

"Seizure" means a legal process carried out by court order against a definite amount of seed.

"Stop sale" means an administrative order provided by law, restraining the sale, use, disposition, and movement of a definite amount of seed.

"Treated" means that the seed has received an application of a substance or process which substance or process is designed to reduce, control or repel certain disease organisms, insects or other pests attacking such seeds or seedlings growing therefrom.

"Type" means a group of varieties so nearly similar that the individual varieties cannot be clearly differentiated except under special conditions.

"Variety" means a subdivision of a kind characterized by growth, yield, plant, fruit, seed, or other characteristics, by which it can be differentiated from other plants of the same kind.

"Vegetable seeds" includes the seeds of those crops which are grown in gardens and on truck farms and are generally known and sold under the name of vegetable seeds in this State.

"Weed seeds" includes the seeds of all plants generally recognized as weeds within this State, and includes noxious-weed seeds.

§ 1502. Label requirements

Each container of agricultural and vegetable seeds which is sold, offered for sale, or exposed for sale, or transported within this State for sowing purposes shall bear thereon or have attached thereto in a conspicuous place a plainly written or printed label or tag in the English language, giving the following information, which statement shall not be modified or denied in the labeling or on another label attached to the container.

For all seeds named and treated as defined in this chapter (for which a separate label may be used):

(1) A word or statement indicating that the seed has been treated.

(2) The commonly accepted, coined, chemical or abbreviated chemical (generic) name of the applied substance.

(3) If the substance in the amount present with the seed is harmful to human or other vertebrate animals a caution statement such as "Do not use for food or feed or oil purposes". The caution for mercurials and similarly toxic substances shall be a poison statement or symbol.

For agricultural seeds:

(1) Commonly accepted name of (A) kind, of (B) kind and variety, of each agricultural seed component in excess of 5 per cent of the whole, and the percentage by weight of each in the order of its predominance. Where more than one component is required to be named, the Word "mixture" or the word "mixed" shall be shown conspicuously on the label.

(2) Lot number or other lot identification.

(3) Origin (State or foreign country), if known, of alfalfa, red clover and field corn (except hybrid corn). If the origin is unknown, the fact shall be stated.

(4) Percentage by weight of all weed seeds.

(5) The name and approximate number of each kind of restricted noxious weed seeds, per ounce in Group I and per pound in Group 2 when present singly or collectively in any amounts whatsoever, provided, however, that the amount does not exceed 10 per ounces in Group 1 and 10 per pound in Group 2.

Group 1: Agropyron spp., Agrostis spp., alfalfa, Bermuda grass, Brassica spp., orchard grass, alsike and white clover, crimson clover, Dallis grass, fescues, flax, foxtail millet, lespedezas, poa spp., red clover, reed canary grass, Rhodes grass, rye-grass, sweet clover, smooth brome, timothy, and other agricultural seeds of similar size and weight, or mixtures within this group.

Group 2: Barley, buckwheat, oats, proso, rye, sorghums, Sudan grass, vetches, wheat, and other agricultural seeds of a size and weight similar to or greater than those within this group, or any mixtures within this group.

All determinations for purity, germination and noxious weed seeds are subject to the tolerances and methods of determination prescribed in the rules and regulations promulgated under this sub-title.

(6) Percentage by weight of agricultural seeds (which may be designated as "crop seeds") other than those required to be named on the label.

(7) Percentage by weight of inert matter.

(8) For each named agricultural seed:

(i) Percentage of germination, exclusive of hard seed,

(ii) Percentage of hard seeds, if present,

(iii) The calendar month and year the test was completed to determine such percentages.

Following (i) and (ii) the "total germination" and "hard seed" may be stated as such, if desired.

(9) Name and address of the person who labeled said seed, or who sells, offers or exposes said seed for sale within this State. For vegetable seeds in containers of one pound or less:

(1) Name of kind and variety of seed,

(2) The year for which the seed was packaged or the germination percentage and date.

(3) For seeds which germinate less than the standard last established by the State Board of Agriculture under this Act.

(i) Percentage of germination, exclusive of hard seed,

(ii) Percentage of hard seeds, if present,

(iii) The calendar month and year the test was completed to determine such percentages,

(iv) The words "Below Standard" in not less than 8-point type; and

(4) Name and address of the person who labeled said seed, or who sells, offers, or exposes said seed for sale within this State. For vegetable seeds in containers of more than 1 pound.

(1) The name of each kind and variety present in excess of 5% and the percentage by weight of each in order of its predominance.

(2) Lot number or other lot identification.

(3) For each named vegetable seed:

(i) The percentage of germination, exclusive of hard seed,

() The percentage of hard seed, if present,

() The calendar month and year the test was completed to determine such percentages.

Following (i) and (ii) the "total germination and hard seed" may be stated as such, if desired.

(4) Name and address of the person who labeled said seed, or who sells, offers or exposes said seed for sale within this State.

(5) The labeling requirements for vegetable seeds in containers of more than 1 pound shall be deemed to have been met if the seed is weighed from a properly labeled container in the presence of the purchaser.

§ 1503. Prohibitions

It is unlawful for any person to sell, offer for sale, expose for sale or to transport for sale any agricultural or vegetable seed within this State--

(1) Unless the test to determine the percentage of germination required by Section 2 shall have been completed within a 9-month period, exclusive of the calendar month in which the test was completed, immediately prior to sale, exposure for sale, or offering for sale or transportation.

(2) Not labeled in accordance with the provisions of this Act, or having a false and misleading labeling.

(3) Pertaining to which there has been a false or misleading advertisement.

(4) Consisting of or containing prohibited noxious weed seeds.

(5) Consisting of or containing restricted noxious weed seeds per pound in excess of the number prescribed by rules and regulations promulgated under this chapter, or in excess of the number declared on the label attached to the container of the seed or associated with the seed.

(6) Containing more than 2.00 per cent by weight of all weed seeds.

(7) If any labeling, advertising, or other representations subject to this chapter represents the seed to be certified or registered seed unless (a) it has been determined by a seed certifying agency that such seed was produced, processed and packaged, and conforms to standards of purity as to kind or variety, in compliance with rules and regulations of such agency pertaining to such seed; and (b) the seed bears an official label issued for such seed by a seed certifying agency stating that the seed is certified or registered. It is unlawful for any person within this State--

(1) To detach, alter, deface, or destroy any label provided for in this Act or the rules and regulations made and promulgated thereunder, or to alter or substitute seed in a manner that may defeat the purpose of this chapter.

(2) To disseminate any false or misleading advertisements concerning agricultural or vegetable seeds in any manner or by any means.

(3) To hinder or obstruct in any way, any authorized person in the performance of his duties under this chapter.

(4) To fail to comply with a "stop sale" order or to move or otherwise handle or dispose of any lot of seed held under a "stop sale" order or tags attached thereto, except with express permission of the enforcing officer, and for the purpose specified thereby.

(5) To use the word "trace" as a substitute for any statement which is required.

(6) To use the word "type" in any labeling in connection with the name of any agricultural seed variety.

§ 1504. Records

Each person whose name appears on the label as handling agricultural or vegetable seeds subject to this chapter shall keep for a period of two years complete records of each lot of agricultural or vegetable seed handled and keep for one year a file sample of each lot of seed after final disposition of said lot. All such records and samples pertaining to the shipment or shipments involved shall be accessible for inspection by the State Board of Agriculture or its agents during customary business hours.

§ 1505. Exemptions

The provisions of sections 1502 and 1503 do not apply--

(1) To seed or grain not intended for sowing purposes.

(2) To seed in storage in, or being transported or consigned to, a cleaning or processing establishment for cleaning or processing; provided, that the invoice or labeling accompanying any shipment of said seed bears the statement "seed for processing"; and provided that any labeling or other representation which may be made with respect to the uncleaned or unprocessed seed shall be subject to this chapter.

(3) To any carrier in respect to any seed transported or delivered for transportation in the ordinary course of its business as a carrier; provided, that such carrier is not engaged in producing, processing, or marketing agricultural or vegetable seeds subject to provisions of this chapter.

(4) To seed sold by one farmer to another if such seed has neither been advertised for sale nor been delivered through a carrier.

No person shall be subject to the penalties of this chapter for having sold or offered or exposed for sale agricultural or vegetable seed, which were incorrectly labeled or represented as to kind, variety, type or origin (if required) which seeds cannot be identified by examination thereof, unless he has failed to obtain an invoice, genuine grower's declaration or other labeling information and to take such other precautions as may be reasonable to insure the identity to be that stated.

§ 1506. Duties and authority of State Board of Agriculture

The duty of enforcing this chapter and carrying out its provisions and requirements is vested in the State Board of Agriculture. It is the duty of such officer who may act through his authorized agents--

(1) To sample, inspect, make analysis of, and test agricultural and vegetable seeds transported, sold, or offered or exposed for sale within the State for sowing purposes, at such time and place and to such extent as he may deem necessary to determine whether said agricultural or vegetable seeds are in compliance with provisions of this chapter, and to notify promptly the person who transported, sold, offered or exposed the seed for sale, if any violation.

(2) To prescribe, and after public hearing following due public notice, to adopt rules and regulations governing the method of sampling, inspecting, analyzing, testing, and examining agricultural and vegetable seed, and the tolerances to be followed in the administration of this chapter, which shall be in general accord with officially prescribed practice in interstate commerce, and such other rules and regulations as may be necessary to secure the efficient enforcement of this chapter.

(3) To prescribe and after public hearing following due public notice, establish, add to or subtract therefrom by regulations a prohibited and restricted noxious weed list.

(4) To prescribe and, after public hearing following due public notice, to adopt rules and regulations establishing reasonable standards of germination for vegetable seeds.

Further, for the purpose of carrying out the provisions of this chapter and the State Board of Agriculture individually or through its authorized agents, is authorized:

(1) To enter upon any public or private premises during regular business hours in order to have access to seeds and the records connected therewith subject to the chapter and the rules and regulations thereunder, and any truck or other conveyor by land, water, or air at any time when the conveyor is accessible, for the same purpose.

(2) To issue and enforce a written or printed "stop sale" order to the owner or custodian of any lot of agricultural or vegetable seed which the State Board of Agriculture finds is in violation of any of the provisions of this chapter or rules and regulations promulgated thereunder, which order shall prohibit further sale, processing and movement of such seed, except on approval of the enforcing officer, until such officer has evidence that the law has been complied with, and he has issued a release from the "stop sale" order of such seed, provided that in respect to seed which has been denied sale, processing and movement as provided in this paragraph, the owner or custodian of such seed shall have the right to appeal from said order to a court of competent jurisdiction in the locality in which the seeds are found, praying for a judgment as to the justification of such order and for the discharge of such seed from the order prohibiting the sale, processing and movement in accordance with the findings of the court: and provided further, that the provisions of this paragraph shall not be construed as limiting the right of the enforcement officer to proceed as authorized by other sections of this chapter.

(3) To establish and maintain or make provisions for seed testing facilities, to employ qualified persons, and to incur

such expenses as may be necessary to comply with these provisions.

(4) To make or provide for making purity and germination tests of seed for farmers and dealers on request; to prescribe rules and regulations governing such testing; and to fix and collect charges for the tests made.

(5) To cooperate with the United States Department of Agriculture and other agencies in seed law enforcement.

(6) To publish the results of analyses, tests, and examinations made under the provisions of this sub-title, together with any other information deemed advisable.

§ 1507. Seizure

Any lot of agricultural or vegetable seed not in compliance with the provisions of this chapter shall be subject to seizure upon complaint to a court of competent jurisdiction in the locality in which the seed is located. In the event the court finds the seed to be in violation of this chapter and order the condemnation of said seed, it shall be denatured, processed, destroyed, relabeled, or otherwise disposed of in compliance with the laws of this State: provided, that in no instance shall the court order such disposition of said seed without first having given the claimant an opportunity to apply to the court for the release of said seed or permission to process or relabel it to bring it into compliance with this chapter.

§ 1508. Injunction

When in the performance of its duties the State Board of Agriculture applies to any court for a temporary or permanent injunction restraining any person from violating or continuing to violate any of the provisions of this chapter or any rules and regulations under this chapter, said injunction is to be issued without bond.

§ 1509. Violations and prosecutions

Every violation of the provisions of this chapter shall be deemed a misdemeanor punishable by a fine not exceeding $100 for the first offense and not exceeding $250 for each subsequent similar offense.

When the State Board of Agriculture shall find that any person has violated any of the provisions of this chapter, he or his duly authorized agent or agents may institute proceedings in a court of competent jurisdiction in the locality in which the violation occurred, to have such person convicted therefor; or the State Board of Agriculture may file with the Attorney General, with a view of prosecution, such evidence as may be deemed necessary: provided, however, that no prosecution under this chapter shall be instituted without the defendant first having been given an opportunity to appear before the State Board of Agriculture or its duly authorized agent, to introduce evidence either in person or by agent or attorney at a private hearing. If, after such hearing, or without such hearing in case the defendant or his agent or attorney fails or refuses to appear, the State Board of Agriculture is of the opinion that the evidence warrants prosecution, he shall proceed as herein provided.

It is the duty of the Deputy Attorney General of the County in which the violation occurred or the Attorney General, as the case may be, to institute proceedings at once against any person charged with a violation of this chapter, if, in the judgment of such officer the information submitted warrants such action.

After judgment by the court in any case arising under this chapter, the State Board of Agriculture shall publish any information pertinent to the issuance of the judgment by the court in such media as he may designate from time to time.

Section 2. This Act shall be cited as "The Delaware Seed Law".

Section 3. This Act shall be effective on and after July 1, 1959.

Approved June 17, 1959.