                         AUSTXN   11. lrExas

                          October 13, 1965

Honorable Naomi Harney            Opinion Noi c-524
County Attorney
Potter County                     Re:    Whether Article lo&, V.C.S.,
Amarillo, Texas                                          thus requires
                                         applies to (and_.
                                         reglstrationor) fertilizer
                                         mixed to the order of the con-
                                         sumer specifyinga content of
                                         less than a sum of 2
                                         gen, phosphorus,
Dear Miss Harney:                         SiUll.

       You have requested the opinion of this offlce regarding
the above question. In this connection,you have furnished us
with the following facts:
            “There is a program in this area whereby
       the fertilizer distributor recommends that a
       farmer determine soil deficiencPesby having
       a laboratory do a soil test. After receiving
       the results, the farmer orders a mixture of
       fertilizer containing elements mixed in pro-
       portion to the recommendationof the testing
       laboratory. The distributormixes the ele-
       ments in accordance with the farmer’s order.
       TE,ngredients used in the mixture are regis-
               In most instances,however, the result-
       ing kxture will not meet the requirementsof
       Section 4, Subsection (e) &ticle 108a V.C.S.7
       because it usually contains less than 2& nitro-
       gen, phosphorus or potassium. The statutory
       24 is not ordinarily recommendedby the lab-
       oratory and the mixture varzes in all cases as
       it is tailored to the land, area and crop of
       the farmer ordering it.”
       In connection with the foregoing,it appears that the
following portions 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


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


      meaning is plainly required by the context, shall
      have the following meaning:
           ,t
            . . .
            "(4) The term 'commercialfertilizer'includ-
       es mixed fertilizerand/or fertilizermaterials and
       any other substances,materials or elements or parts
      thereof, including but not limited to pesticides,
       intended for use or used as an ingredient or ccmpon-
       entof a mixture of materials which is used, design-
       ed,,or representedfor use or claimed to have value
       in,promotingplant growth, except unprocessed,un-
       packaged and unmanipulatedlime, limestone and gyp-
       sum. . . .
           “(5) The term 'mixed fertilizer'means a sol-
      id or non-solid product which results fron the
      combination,mixture, or simultaneousapplication
      of two or more fertilizermaterials by a manufac-
      turer, processor, mixer, or contractor,and shall
      include specialty fertilizersand manipulatedman-
      ures, . . .
           8,
            . . .
           “(7) The term 'specialtyfertilizer'means a
      commercial fertilizer distributedprimarily for non-
      farm 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,municipal parks, cemeteries,
      greenhousesand nurseries."
            "Sec. 4. (a) Each brand end grade of~commer-
       cial fertilizer shall be registered with the Direc-
       tor before being distributed in this state. . . .
            II
                 .   .   .


            "(e) Any mixed fertilizerin which the sum
       of the guarantees for nitrogen, phosphorus as
       available phosphoric acid and/or potassium as
       potash &s less than twenty-fourpercent (24$),
       except manipulated manures, specialty fertilizers
       and commercial fertilizers sold only for their
       content of secondary components, shall not be
       registered in the state.
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Hon. Wsomi &rney, page 3 (C-,524)          ",


       Inasmuch as there is no case law or prior Attorney.General
opinions on this particular question, we must be guided solely
by the terms of the statute. We have a situationwhere the defi-
nitions, above quoted, squarely encompass the product that is be-
ing sold. When the distributorprepares the fertilizer in accord-
ance with the directions of the soil laboratory,he,is preparing
and selling a "mixed fertilizer"as defined above; ,Inaccordance
with Section 4(a) of Article 108a, Vernon's CivilStatutes, such
a preparation must be registered in this State before distribution.
Further, unless the chemical constituents'ofthe ,fertilizermeet
the minimums established in Section k(e), the'fertilizermay not
be registered. There are certain exceptions to the minimum con-
tent requirements,but none of these are applicable in this in-
stance. These exceptions relate to specialty fertilizersthat are
for non-farm uses, as defined in Sec. 2 (7) above, and to commer-
cial fertilizers sold only for their content of aecondarg compo-
nents.
       In accordance with 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 fertilizersmixed to
the order of the farmer. These mixed fertilizersmust be regis-
tered prior to distribution,and they are not qualified for regis-
tration if their guaranteed minimum chemical content falls below
the standards set by the statute.
                          SUMMARY
              The provisions of Article 108a, V.C.S., apply
         to commercial fertilizersmixed to the order of the
         farmer. These mixed fertilizersmuat 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



MLQrms
                                BYdckdd
                                    Assistant




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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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