Drunk on power!
OPINION: The end-of-year booze-up at the posh Northern Club in Auckland must have been a beauty, as the legal 'elite' let their hair down and showed us how entitled and political some in the judiciary really are.
The case was between fertiliser companies Ballance Agri-Nutrients and Quin Environmentals. The former claimed the latter had breached the Fair Trading Act by marketing its Algerian RPR as an RPR product when it hadn’t met the necessary Citsol Test standard required in the Fertmark Code.
While the court clearly ruled that Quin had in fact breached the act and that it could not market its Algerian RPR without a clear qualifying disclaimer about it not meeting the Citsol Test, it did allow Quin to continue to market the product as an RPR (subject to the qualifier), because it otherwise has the physical properties of an RPR. Quin sees this part of the ruling as a “win for science”.
The court also noted in passing that the Citsol Test used as the Fertmark Code criteria for defining what an RPR is in the NZ context is somewhat “arbitrary” and that the Fertiliser Quality Council appears to be moving towards an alternative test – the Watkinson Dissolution Test – which the Algerian phosphate rock scores well in.
However, the court noted it could only rule on the central issue at hand, which was whether or not Quin had failed to meet the Fertmark Code as it stands and therefore breached the Fair Trading Act.
It ruled that the code is currently the industry-accepted standard and that Quin had breached the act with some of its advertising. Ballance sees this as a win for certification standards, saying it brought proceedings in a bid to “maintain the integrity of the Fertmark Code”.
So what is the Citsol Test and why did the court accept, at least in passing, that it may not be the most relevant measure of a RPR? In brief, the test measures the amount of phosphate that can be extracted from a solution of 2% citric acid mixed with a fixed quantity of phosphate rock (not ground up). To meet the Fertmark product classification as RPR, the rock must be shown to contain 30% P by the 30 minute Citsol Test.
While Quin’s Algerian ‘V2’ RPR product – with reduced dolomite to ensure it meets the Citsol standard – passed this test, its other Algerian phosphate rock produced results below 30% P – 27.28% and 28% in tests done by Marsden Agri; 25.20% and 26.19% in tests done by Ballance.
The judge’s comments about the Citsol Test came partly in response to the counterclaim brought by Quin, which claimed Ballance’s Hi P RPR is not a natural RPR product because it is a blend of Sechura RPR and ‘PB3’, which is derived from a phosphate rock but is not an RPR.
Even though the Hi P RPR product is a blend, the judge accepted it was still a phosphate rock and that it passes the Citsol Test, and therefore dismissed the counterclaim, making this observation: “The Hi P RPR example does however show the rather arbitrary nature of the reliance on the Citsol Test for determining what is RPR in New Zealand.”
