§149A-2 Definitions. As used in this chapter, unless the context clearly requires otherwise:

"Active ingredient" means:

(1) In the case of a pesticide other than a plant regulator, defoliant, or desiccant, an ingredient which will prevent, destroy, repel, or mitigate any pest;

(2) In the case of a plant regulator, an ingredient which, through physiological action, will accelerate or retard the rate of growth or maturation or otherwise alter the behavior of ornamental or crop plants or the produce thereof;

(3) In the case of a defoliant, an ingredient which will cause the leaves or foliage to drop from a plant; and

(4) In the case of a desiccant, an ingredient which will artificially accelerate the drying of plant tissues.

"Adulterated" means any pesticide if its strength or purity falls below the professed standard of quality as expressed on its labeling under which it is sold, or if any substance has been substituted wholly or in part for the pesticide, or if any valuable constituent of the pesticide has been wholly or in part abstracted.

"Animal" means all vertebrate and invertebrate species, including but not limited to humans and other mammals, birds, fish, and shellfish.

"Board" means board of agriculture.

"Certified pesticide applicator" means any individual who is certified under section 149A-33(1) as authorized to use or supervise the use of any pesticide which is classified for restricted use.

"Chairperson" means chairperson of the board of agriculture.

"Commercial pesticide applicator" means any certified pesticide applicator, whether or not the applicator is a private pesticide applicator with respect to some uses, who uses or supervises the use of any pesticide which is classified for restricted use for any purpose or on any property other than as provided by section 149A-2.

"Defoliant" means any substance or mixture of substances intended for causing the leaves or foliage to drop from a plant, causing or without causing abscission.

"Department" means department of agriculture.

"Desiccant" means any substance or mixture of substances intended for artificially accelerating the drying of plant tissues.

"Device" means any instrument or contrivance, other than a firearm, which is intended for trapping, destroying, repelling, or mitigating any pest or any form of plant or animal life (other than humans and other than bacteria, viruses, or other microorganisms on or living in humans or other animals); but not including equipment used for application of pesticides when sold separately therefrom.

"Distribute or sell" means to distribute, sell, offer for sale, hold for distribution, hold for sale, hold for shipment, ship, deliver for shipment, release for shipment, or receive and deliver or offer to deliver; provided that the term does not include the holding or application of registered pesticides or the use of dilutions of registered pesticides by any applicator who provides a service of controlling pests without delivering any unapplied pesticide to any person so served.

"Environment" includes water, air, land, and all plants and humans and other animals living therein, and the interrelationships which exist among these.

"EPA" means the United States Environmental Protection Agency.

"FIFRA" means the Federal Insecticide, Fungicide, and Rodenticide Act, as amended.

"Fungi" means all nonchlorophyll-bearing thallophytes including rusts, smuts, mildews, molds, yeasts, and bacteria, except those on or living in humans or other animals and those on or in processed foods, beverages, or pharmaceuticals.

"General use pesticide" means a pesticide other than one designated as restricted pesticide.

"Imminent hazard" means a situation which exists when the continued use of a pesticide during the time required for a cancellation proceeding would likely result in unreasonable adverse effects on the environment or will involve unreasonable hazard to the survival of a species declared endangered by the Secretary of the Interior under the Endangered Species Act.

"Inert ingredient" means an ingredient which is not an active ingredient.

"Ingredient statement" means:

(1) A statement of the name and percentage of each active ingredient, together with the total percentage of the inert ingredients, in the pesticide; and

(2) In case the pesticide contains arsenic in any form, a statement of the percentages of total and water soluble arsenic, each calculated as elemental arsenic.

"Insect" means invertebrate animals belonging to the class insecta, including beetles, bugs, bees, flies, and other allied classes of arthropods, including spiders, mites, ticks, centipedes, and wood lice.

"Integrated pest management" means a sustainable approach to managing pests by combining biological, cultural, physical, and chemical tools in a way that minimizes economic, health, and environmental risks.

"Label" means the written, printed, or graphic matter on or attached to the pesticide or device or any of its containers or wrappers.

"Labeling" means all labels and other written, printed, or graphic matter accompanying the pesticide or device at any time or to which reference is made on the label or in literature accompanying the pesticide or device, except to current official publications of the EPA, the United States Departments of Agriculture and the Interior, the United States Department of Health and Human Services, state experiment stations, state agriculture colleges, or other similar federal or state institutions or agencies authorized by law to conduct research in the field of pesticides.

"License" means the process of being allowed to register a pesticide product pursuant to provisions of this chapter. "Licensee" means a person who has been licensed to register a product pursuant to provisions of this chapter.

"Misbranded" includes any of the following:

(1) The labeling of the pesticide or device bears any statement, design, or graphic representation relative thereto or to its ingredients or functions which is false or misleading in any particular;

(2) The pesticide is contained in a package or other container or wrapping which does not conform to the standards established by federal law;

(3) The pesticide is an imitation or is offered for sale under the name of another pesticide;

(4) The label does not bear the federal registration number assigned to each establishment in which it was produced;

(5) Any word, statement, or other information required by or under authority of the federal law to appear on the label or labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or graphic matter in the labeling) and in terms to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;

(6) The labeling accompanying the pesticide does not contain directions for use which are necessary for effecting the purpose for which the product is intended and if complied with, together with any requirements imposed under FIFRA are adequate to protect health and the environment;

(7) The label does not contain a warning or caution statement which may be necessary and if complied with, together with any requirements imposed under federal law, is adequate to protect health and the environment;

(8) The label does not bear an ingredient statement on that part of the immediate container (and on the outside container or wrapper of the retail package, if there be one, through which the ingredient statement on the immediate container cannot be clearly read) which is presented or displayed under customary conditions of purchase, except that a pesticide is not misbranded under this section if:

(A) The size or form of the immediate container, or the outside container or wrapper of the retail package, makes it impracticable to place the ingredient statement on the part which is presented or displayed under customary conditions of purchase; and

(B) The ingredient statement appears prominently on another part of the immediate container, or outside container or wrapper, permitted by the department;

(9) The labeling does not contain a statement of the use classification under which the product is registered;

(10) There is not affixed to its container, and to the outside container or wrapper of the retail package, if there be one, through which the required information on the immediate container cannot be clearly read, a label bearing:

(A) The name and address of the producer, registrant, or person for whom produced;

(B) The name, brand, or trademark under which the pesticide is sold;

(C) The net weight or measure of the content; provided that the EPA Administrator may permit reasonable variations; and

(D) When required by federal regulations to effectuate the purposes of this law, the registration number assigned to the pesticide under federal law and the use classification; and

(11) The pesticide contains any substance or substances in quantities highly toxic to humans, unless the label shall bear, in addition to any other matter required by this law:

(A) The skull and crossbones;

(B) The word "poison" prominently in red on a background of distinctly contrasting color; and

(C) A statement of a practical treatment (first aid or otherwise) in case of poisoning by the pesticide.

"Nematode" means invertebrate animals of the phylum nemathelminthes and the class nematoda, including unsegmented round worms with elongated fusiform or sac-like bodies covered with cuticle, and inhabiting soil, water, plants, or plant parts.

"Nonrestricted use pesticide" means a pesticide other than one designated as restricted use pesticide.

"Person" means any individual, firm, corporation, association, or partnership or any organized group of persons whether incorporated or not.

"Pest" means any insect, rodent, nematode, fungus, weed, or any other form of terrestrial or aquatic plant or animal life or virus, bacterium, or any other microorganism, except viruses, bacterium, or any other microorganisms on or in living humans or other living animals, which the Administrator of the United States Environmental Protection Agency determines to be a pest pursuant to the [Federal Insecticide, Fungicide, and Rodenticide Act].

"Pest control operator" means a commercial pesticide applicator, who is required to possess a valid license for pest control under chapter 460J.

"Pesticide" means:

(1) Any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest; and

(2) Any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant.

"Plant regulator" means any substance or mixture of substances intended, through physiological action, for accelerating or retarding the rate of growth or maturation or for otherwise altering the behavior of plants or the produce thereof, but does not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants, and soil amendments.

"Private pesticide applicator" means a certified pesticide applicator who uses or supervises the use of any pesticide which is classified for restricted use for purposes of producing any agricultural commodity on property owned or rented by the applicator or the applicator's employer if applied without compensation other than trading of personal services between producers of agricultural commodities on the property of another person.

"Producer" means any person who manufactures, prepares, compounds, propagates, or processes any pesticide or device. "Produce" means to manufacture, prepare, compound, propagate, or process any pesticide or device.

"Protect health and the environment" or "protection of health and the environment" means protection against unreasonable adverse effects on the environment.

"Registrant" means the person registering or licensing any pesticide pursuant to this chapter.

"Restricted use pesticide" means:

(1) A pesticide or pesticide use classified by the Administrator, EPA, for use by certified applicators or competent persons under their direct supervision and so designated on its label; or

(2) A pesticide or pesticide use classified by the board for use by certified applicators or competent persons under their direct supervision.

"Sell or distribute" means to distribute, solicit, sell, offer for sale, hold for sale, transport, or deliver for transportation in intrastate commerce or between points within the State through any point outside the State.

"Under the direct supervision of a certified applicator" means, unless otherwise prescribed by its labeling, a pesticide shall be considered to be applied under the direct supervision of a certified applicator if it is applied by a competent person acting under the instructions and control of a certified applicator who is available if and when needed, even though the certified applicator is not physically present at the time and place the pesticide is applied.

"Unreasonable adverse effects on the environment" means any unreasonable risk to humans or the environment, taking into account the economic, social, and environmental costs and benefits of the use of the pesticide.

"Weed" means any plant which grows where not wanted. [L 1972, c 58, pt of §1; am L 1975, c 126, pt of §1; am L 1981, c 33, §1; am L 1985, c 131, §3; gen ch 1985; am L 1987, c 310, §1; gen ch 1993; am L 2000, c 154, §1; am L 2007, c 71, §1 and c 174, §2]

Revision Note

Reference to "149A-2(28)" in definition of "commercial pesticide applicator" changed to "149A-2".