Quin Environmentals breached the Fair Trading Act by linking its superphosphate fertiiser to Fertmark accreditation when it did not comply with testing specified to satisfy that accreditation, competitor Ballance alleges.
In the 1990s, Federated Farmers established the Fertmark scheme to assist farmers in judging quality of farm products offered for sale. In respect of superphosphate fertiliser, product Fertmark-labelled as RPR (reactive phosphate rock for direct application) must satisfy a specified solubility test. The test is carried out with product in rock format, not in the granulated form as applied to pasture. It is generally accepted that this test is outdated, but it remains the current test for Fertmark RPR branding.
Ballance Agri-Nutrients Ltd objected when competitor Quin Environmentals (NZ) Ltd advertised 15,000 tones of superphosphate imported from Algeria as simply ‘the best all-round RPR in the world’. No direct mention was made of Fertmark. Ballance said the implication for farmers was clear; the product was Fertmark compliant. It did not comply with the specified RPR Fertmark test. It did comply with what Dr Bert Qunin of Quin Environmentals described as ‘straight RPR’ being a modified solubility test he considered more appropriate.
Justice Fitzgerald said it is not for the court to determine the efficacy of solubility tests, but to rule on whether a false and misleading impression is given when the Quin advertised product does not comply with the Fertmark RPR testing protocol. It was potentially a breach of the Fair Trading Act to market the Quin product as ‘RPR’ without explaining this is not RPR as defined by the Fertmark standard. An interim injunction was issued to block future RPR advertising by Quin Environmentals unless accompanied by a suitable qualification.
Whether Quin Environmentals was in breach of the Fair Trading Act requires a full court hearing.
Ballance Agri-Nutrients Ltd v. Quin Environmentals (NZ) Ltd – High Court (19.03.19)
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