HonorableNaomi

County Attorney Potter County Amarillo, Texas AUSTXN 11. lrExas October 13, 1965
Harney Opinion Noi c-524

Re: WhetherArticle applies to (and_.

Dear Miss Harney: lo&, V.C.S., thus requires reglstrationor) fertilizer mixed to the order of the consumer specifying

a content of less than a sum of 2 gen, phosphorus, SiUll. You have requested the opinion of this offlce regarding the above question. In this connection,you have furnishedus with the following facts:

“There is a program in this area whereby the fertilizerdistributorrecommendsthat a farmer determine soil deficiencPes by having a laboratorydo a soil test. After receiving the results, the farmer orders a mixture of fertilizer containingelementsmixed in proportion to the recommendation of the testing laboratory. The distributor mixes the elements in accordancewith the farmer’s order. TE,ngredients used in the mixture are regisIn most instances,however, the resulting kxture will not meet the requirementsof Section 4, Subsection (e) &ticle 108a V.C.S.7 because it usually contains less than 2& nitrogen, phosphorus or potassium. The statutory 24 is not ordinarilyrecommendedby the laboratory and the mixture varzes in all cases as it is tailored to the land, area and crop of the farmer ordering it.”
In connectionwith the foregoing,it appears that the followingportions of Article 108a, Yernon’s Civil Statutes, are applicable

: “Sec. 2. The words and phrases as used in and applicable to this Act, unless a different

-2464-Hon. Naomi Harney, page 2 (C-524)

meaning is plainly requiredby the context, shall have the followingmeaning: ,t

. . . "(4) The term 'commercial fertilizer'includes mixed fertilizerand/or fertilizer materials and any other substances, materials or elements or parts thereof, including but not limited to pesticides, intended for use or used as an ingredientor ccmponentof a mixture of materialswhich is used, designed,, or representedfor use or claimed to have value in,promoting

plant growth, except unprocessed,unpackaged and unmanipulatedlime, limestoneand gypsum. . . . “(5) The term 'mixed fertilizer' means a solid or non-solidproduct which results fron the combination,

mixture, or simultaneous application of two or more fertilizermaterialsby a manufacturer, processor,mixer, or contractor,and shall include specialtyfertilizers and manipulatedmanures, . . . 8,

. . . “(7) The term 'specialty fertilizer'

means a commercial fertilizerdistributed primarily for nonfarm use, except the excreta of animals and plant remains and mixtures of such substances,for which no grade claims are made other than to identify the products, such as home gardens, lawns, shrubbery, flowers, golf,courses, municipalparks, cemeteries, greenhousesand nurseries." "Sec. 4. (a) Each brand end grade of~commercial fertilizer shall be registeredwith the Director before being distributedin this state.
. . .

II

. . . "(e) Any mixed fertilizerin which the sum of the guarantees for nitrogen,phosphorusas availablephosphoricacid and/or potassiumas potash &s less than twenty-four percent (24$), except manipulatedmanures, specialty fertilizers and commercial fertilizerssold only for their content of secondary components,shall not be registered in the state. -2465-Hon. Wsomi &rney, page 3 (C-,524) ",

Inasmuch as there is no case law or prior Attorney.General opinions on this particularquestion,we must be guided solely by the terms of the statute. We have a situationwhere the definitions, above quoted, squarely encompass the product that is being sold. When the distributor prepares the fertilizerin accordance with the directions of the soil laboratory, he,is preparing and selling a "mixed fertilizer"as defined above; ,In accordance with Section 4(a) of Article 108a, Vernon's CivilStatutes, such a preparationmust be registered in this State before distribution. Further, unless the chemical constituents'of the ,fertilizer

meet the minimums establishedin Section k(e), the' fertilizer

may not be registered. There are certain exceptionsto the minimum content requirements, but none of these are applicable in this instance.These exceptionsrelate to specialty fertilizersthat are for non-farm uses, as defined in Sec. 2 (7) above, and to commercial fertilizers sold only for their content of aecondargcomponents.
In accordancewith the foregoing,you are advised that it is the opinion of this office that the provisions of Article 108a, Vernon's Civil Statutes, apply to commercial fertilizers mixed to the order of the farmer. These mixed fertilizers must be registered prior to distribution, and they are not qualified for registration if their guaranteedminimum chemical content falls below the standards set by the statute. SUMMARY The provisions of Article 108a, V.C.S., apply to commercial fertilizers mixed to the order of the farmer. These mixed fertilizers muat be registered prior to distribution,and are not qualified for registrationif their guaranteedminimum chemical content falls below the standards set by the statute. Yours very truly, WAGGONER CARR Attorney General 

# BYdckdd

Assistant MLQrms

-2466-Hon. Naomi Rarney, page 4 (~-524)

APPROVED: OPINION COMMITTEE W. V. ~Geppert.,

Chairman " Edward Moffett John Fainter Marietta Payne APPROVED FOR DIE ATTOFd?.EY GENERAL By: T. B.~Wri&t

,.

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