Environmental Protection (Packaged Fertiliser) Regulations 2010

The Environmental Protection (Packaged Fertiliser) Regulations 2010 (WA) restrict the phosphorus content and nitrogen-to-phosphorus ratio of packaged fertilisers sold to consumers in small use containers (capacity or net mass not over 50 kg or 50 L). The regulations operate under the Environmental Protection Act 1986 and are not a stand-alone environmental protection measure but a product composition and labelling instrument aimed at reducing phosphorus runoff from domestic gardens and lawns. They impose maximum phosphorus concentrations for three categories of fertiliser , garden, lawn and all purpose , with phased limits: before 1 January 2013, garden fertiliser could not exceed 2.5% phosphorus by weight, lawn fertiliser 1%; from 1 January 2013, garden fertiliser drops to 2%, lawn and all purpose fertilisers are capped at 1%. From the same date, any fertiliser containing more than 0.5% phosphorus must also satisfy a nitrogen‑to‑phosphorus ratio between 5:1 and 20:1 (regulation 12). Liquid and concentrated solid fertilisers are measured at the dilution rate recommended on the label (regulation 5(2)), which systematically reduces the assessed phosphorus percentage compared to the undiluted concentrate. The regulations also require mandatory labelling: phosphorus concentration as percentage weight by weight, the N:P ratio where applicable, the recommended dilution rate for liquid and concentrated solid products, and the manufacturer’s recommended application method and use (regulation 14). Small use containers of liquid or concentrated solid fertiliser must include a measuring device (regulation 17). Offences carry a maximum penalty of a $5 000 fine, and the Environmental Protection Regulations 1987 have been amended to prescribe modified penalties (infringement notices) of $250 or $500 for each listed offence (regulation 18). The regulations do not apply to fertiliser manufactured for sale or sold to a person outside Western Australia, or to fertiliser sold to a person in the business of manufacturing fertiliser (regulation 6). They thus target the retail consumer market, not agricultural or horticultural bulk supply.

The central concept is “packaged fertiliser”, defined as fertiliser packaged in a “small use container” , a container with capacity not exceeding 50 L or net mass not exceeding 50 kg (regulation 3). “Fertiliser” itself is defined broadly in regulation 4 as any substance containing nitrogen, phosphorus, potassium or another element required for plant growth, manufactured or sold to fertilise soil, supply nutrients, or condition soil by altering its chemical, physical or biological composition. Unprocessed animal manure, unprocessed vegetable matter, mulch and unprocessed manufacturer’s waste are not in themselves fertilisers (regulation 4(2)). The categories of fertiliser , garden, lawn and all purpose , are defined entirely by what the label says the product is suitable for, not by any objective chemical or agronomic characteristic. “Garden fertiliser” means fertiliser whose label indicates it is suitable for use on plants, but does not include lawn or all purpose fertiliser (regulation 3). “Lawn fertiliser” means fertiliser whose label indicates it is suitable for use on lawns, excluding all purpose fertiliser. “All purpose fertiliser” means fertiliser whose label indicates it is suitable for all purpose use on lawns and gardens. This label‑based classification creates an incentive for manufacturers to choose labelling words strategically to fall into a less restrictive category. For example, before 1 January 2013, garden fertiliser had a 2.5% phosphorus limit, lawn fertiliser had 1%, and there was no category for all purpose fertiliser before 2013. After 2013, garden fertiliser is limited to 2%, while lawn and all purpose are limited to 1%. A product that says “suitable for lawns” and “suitable for garden beds” could be labelled as all purpose, attracting the stricter 1% cap. Alternatively, a product labelled solely for garden use can contain up to 2%. The distinction is critical because compliance cost (reformulation, testing, labelling) varies directly with the cap. “Processed organic fertiliser” is defined (regulation 3) to include compost, blood and bone, bone meal, bone dust, and dynamic lifter, but this definition is relevant only to the transitional exemptions in regulations 7 and 9, which exempt processed organic and controlled release fertilisers from the caps before 1 January 2013. From 1 January 2013, the caps in regulations 8, 10 and 11 have no express exemption for processed organic fertiliser, so after that date even products like blood and bone must comply with the 2% or 1% phosphorus limit (and the N:P ratio) unless the product is not packaged in a small use container or is sold to a manufacturer. For concentrated solid fertilisers and liquid fertilisers, regulation 5(2) requires that the percentage by weight of a nutrient be determined based on the weight of the fertiliser when diluted, dissolved or mixed in water at the rate recommended on the label. This artificially reduces the reported phosphorus percentage because the weight of water is included in the denominator. A concentrated powder with, say, 10% phosphorus by weight in dry form may drop to under 1% after dilution, making compliance easier for concentrated products than for ready‑to‑use granular fertilisers. The same dilution convention applies to the N:P ratio under regulation 12, but note that regulation 5(2) is expressed as “unless otherwise permitted under these regulations”, and regulations 7(4) and 9(4) permit alternative measurement methods (weight by volume, volume by volume, weight by weight) for liquid and concentrated solid fertilisers before 2013; after 2013 those alternative methods are not repeated in regulations 8, 10 or 11, so regulation 5(2) applies in full for the post‑2013 caps. That means for a concentrated solid sold after 2013, the phosphorus percentage must be calculated using the diluted weight, which will likely be much lower than the dry weight percentage. This is a de facto advantage for concentrated products.

The regulations primarily affect manufacturers, packagers and retailers of fertiliser sold in Western Australia in containers of up to 50 kg or 50 L. The exemption in regulation 6(a) for fertiliser manufactured for sale outside the state means that a manufacturer based in WA who packages product for export to another state or country is not bound by the phosphorus caps or labelling requirements, though the product would need to comply with the destination jurisdiction’s requirements. Regulation 6(b) exempts fertiliser sold to a person in the business of manufacturing fertiliser, so bulk sales between manufacturers or to a formulator who repackages are not caught. The practical burden therefore falls on the retail consumer market: garden centres, hardware stores, supermarkets, online retailers selling directly to WA households, and the manufacturers who supply them. The definition of “small use container” captures most consumer‑size bags and bottles; a 25 kg bag of lawn fertiliser and a 1 L bottle of liquid concentrate are both covered. A 200 L drum or a 1 tonne bulk bag is not. The label‑based definitions mean that a product labelled “rose food” (garden fertiliser) is subject to the 2% cap after 2013, while a product labelled “lawn food” (lawn fertiliser) is subject to the 1% cap. The same manufacturer may need to produce different formulations or different labels for different product lines, increasing complexity and inventory costs. Processed organic fertiliser manufacturers and importers are particularly affected because, after 1 January 2013, there is no express exemption from the phosphorus caps or the N:P ratio requirement. Blood and bone (typically 6-12% phosphorus) and concentrated organic blends would be non‑compliant unless they are not packaged in a small use container or are sold to another manufacturer. Small‑scale producers who make compost‑based fertiliser may find it difficult to formulate a product that both meets the 1% or 2% phosphorus cap and provides adequate nutrition for phosphorus‑demanding plants such as flowering annuals or lawns. Retailers face liability for selling non‑compliant product: the offence provisions (e.g. regulation 8(4), 10(4), 11(4), 12(4)) apply to the act of sale, not just packaging. A retailer who receives non‑compliant stock from a manufacturer cannot rely on the manufacturer’s warranty as a defence, though the modified penalty provisions (regulation 18) allow infringement notices of $250 or $500 for first offences, which may reduce the incentive for prosecution against retailers compared to the $5 000 maximum court fine. Consumers are indirectly affected: product choice narrows, particularly for high‑phosphorus specialty fertilisers. The cost of reformulation and compliance is likely passed through to retail prices. The measurement rule for concentrated solids and liquids (diluted weight) gives manufacturers an incentive to sell concentrated products rather than ready‑to‑use granular formulations, because the same product in concentrated form will have a reported lower phosphorus percentage, potentially allowing a higher absolute phosphorus content per unit of active ingredient.

The central duties are imposed on persons who package or sell fertiliser in a small use container. A person must not package fertiliser for sale as garden, lawn or all purpose fertiliser unless the phosphorus content does not exceed the prescribed maximum (regulations 7(5), 8(3), 9(5), 10(3), 11(3)). The same prohibitions apply to selling (regulations 7(6), 8(4), 9(6), 10(4), 11(4)). From 1 January 2013, duty also applies to the N:P ratio: a person must not package or sell fertiliser with more than 0.5% phosphorus in a small use container for garden, lawn or all purpose use unless the ratio is between 5:1 and 20:1 (regulation 12(3), (4)). The duty is strict: the regulations do not provide a defence of reasonable mistake or due diligence. The penalty for each offence is a fine of $5 000, and the modified penalty regulations (regulation 18) set infringement notice amounts of $250 for a first offence and $500 for a subsequent offence for each listed regulation. The labelling duties in Part 3 require that any small use container of fertiliser must have a label on the outside that is easily readable without opening the container (regulation 13). The label must state phosphorus concentration as %wt/wt; if regulation 12 applies, the N:P ratio; for liquid or concentrated solid, the recommended dilution rate; and the recommended application method and use (regulation 14). The printing must be legible, indelible, in a colour contrasting with the background, and with characters at least 2 mm high (regulation 15). A person must not package or sell a small use container of fertiliser unless it is labelled in accordance with Part 3 (regulation 16). Liquid and concentrated solid fertilisers must include a measuring device, either as part of or attached to the container (regulation 17). The obligation is on the packager and seller, not the consumer. No right of private enforcement is provided; enforcement is by the Department of Water and Environmental Regulation or authorised officers under the Environmental Protection Act 1986. Retailers have limited rights: they can seek indemnity from their supplier in contract, but no statutory defence is available. The regulations themselves do not create a right to return non‑compliant fertiliser or to claim damages for loss resulting from using a fertiliser that is compliant but unsuitable for the user’s needs.

Each offence in regulations 7 to 12, 16 and 17 carries a maximum penalty of a $5 000 fine. The regulations do not create terms of imprisonment or continuing‑offence penalties, but each day of continued packaging or sale could arguably constitute separate offences if the fertiliser remains on display. The more significant enforcement detail is in regulation 18, which amends the Environmental Protection Regulations 1987 to prescribe modified penalties for 16 listed offences. A modified penalty is the amount payable as an infringement notice if the alleged offender chooses not to have the matter dealt with by a court. For all 16 listed offences, the modified penalty is $250 for a first offence and $500 for a subsequent offence. Those amounts are set in the table inserted by regulation 18(2). The table covers all the packaging and selling offences in regulations 7(5), 7(6), 8(3), 8(4), 9(5), 9(6), 10(3), 10(4), 11(3), 11(4), 12(3), 12(4), 16(1), 16(2), 17(4) and 17(5). Notably, there is no modified penalty for any offence under Part 3 that is not listed, but all are listed. The effect is that a packager or retailer who is found in breach can receive an on‑the‑spot fine of $250 for the first infringement and $500 for each subsequent breach. This is low relative to the $5 000 court maximum, and likely reflects an expectation that non‑compliance may be widespread in the retail sector and that strict court enforcement would be disproportionate for small retailers. However, the low modified penalty also reduces the deterrence value, making compliance potentially less attractive than paying the fine and continuing to sell non‑compliant stock, especially if the profit margin on a bag of fertiliser is high. The choice to face court is always available to the alleged offender, but a retailer would rarely contest a $250 fine given legal costs. The Environmental Protection Act 1986 also provides for enforcement orders, stop notices and directions that could be used independently, but the regulations do not mention them. The regulations do not create any criminal liability for directors or officers unless they are the person packaging or selling , the wording is “a person must not package … for sale”. An employee who packs fertiliser is a person and could be liable, though in practice enforcement would more likely be directed at the corporation.

The regulations are made under the Environmental Protection Act 1986 (WA), which creates a broad framework for environmental harm prevention. They do not repeal or override any other law. The labelling requirements in the regulations coexist with the Australian Consumer Law (ACL) (Schedule 2 to the Competition and Consumer Act 2010 (Cth)). The ACL requires that labels not be misleading or deceptive, and also sets out specific information standards for certain goods. The Competition and Consumer (Consumer Goods Information Standards) Fertiliser Labelling Information Standard 2020 (Cth) is a mandatory safety standard that requires certain warnings and nutrient declarations. The state regulations require phosphorus %wt/wt and N:P ratio, while the Commonwealth standard may require other information such as nitrogen, phosphorus and potassium guaranteed analysis. Where both apply, a compliant label must satisfy both sets of requirements. The state regulations also require the label to state the application method and use recommended by the manufacturer , a requirement not duplicated in the Commonwealth standard. There is no express provision for mutual recognition or exemption. The regulations do not interact with the Agricultural and Veterinary Chemicals (Control of Use) Act 2002 (WA) or the Fertilisers Act 1985 (Cth), which regulates fertiliser quality for agricultural purposes , largely because those Acts focus on agricultural and bulk fertiliser, not the small‑use consumer segment. The exemption in regulation 6 for fertiliser sold to a manufacturer means that fertiliser supplied to a formulator for repackaging is not subject to the caps, so the regulations operate only at the final retail stage. Trade Practices Act 1974 (now Competition and Consumer Act) implications arise if a product is labelled “all purpose” but is chemically unsuitable for, say, native plants that require low phosphorus. The label must indicate the recommended use, but a manufacturer who labels a product “all purpose” without qualification may still face ACL claims if the high phosphorus content harms sensitive plants. There is no interaction with the Workplace Health and Safety Act or dangerous goods laws, except that the measuring device requirement (regulation 17) obliges packagers to include a device, which may need to comply with weights and measures legislation. The National Measurement Act 1960 (Cth) and the National Trade Measurement Regulations 2009 regulate measuring instruments used for trade; a measuring device supplied with a fertiliser container is not necessarily a trade‑approved device, but if the consumer uses it to measure fertiliser for application it is not used for trade. The regulations also do not affect the Agricultural Produce (Fertilisers) Regulations under state law, which govern analysis and registration of fertiliser for sale. However, those regulations relate to agricultural fertiliser, not small‑use containers.

The regulations were gazetted on 31 December 2010 and came into operation in two phases: regulations 1 and 2 on gazettal; regulations 3 to 16 (except Part 3) and regulation 18 on 1 January 2011; and Part 3 (labelling) and regulation 17 (measuring devices) on 1 January 2013. The compilation table shows no amendments subsequent to commencement. The original regulations themselves have not been amended, but the Environmental Protection Regulations 1987 were amended by regulation 18 at the time of commencement to include the modified penalty table. There is no evidence of later amendments. This stability is a double‑edged sword: the regulations have not been reviewed or updated since their commencement, despite changes in fertiliser products, packaging sizes, and scientific understanding of phosphorus runoff. For example, the maximum container size of 50 kg or 50 L was set in 2010; today, many online‑sold concentrated liquid fertilisers come in 1 L bottles, but a 50 L capacity could still allow a 100 L drum sold as a “refill” to escape regulation, because it exceeds the small use container limit. The lack of amendment means the definitions have not been tested against new product forms such as slow‑release tablets, water‑soluble sachets, or fertiliser incorporated into potting mix. The regulations also do not include any provision for the Minister to vary the phosphorus caps by notice or regulation. Any change would require a full regulation amendment, which is a legislative process.

The source text does not provide any information about litigation history. No cases are cited in the regulations or the compilation. A search of publicly available Western Australian case law (not included in the source) would be required to determine whether any prosecutions have occurred. Given the low modified penalties and the specialised nature of the regulations, it is plausible that disputes have been resolved through infringement notices or administrative action rather than court proceedings. The absence of reported litigation could also indicate that compliance is generally achieved, or that enforcement is limited. The regulations do not create a private right of action, so no civil cases would arise except perhaps for breach of contract or misleading conduct under the ACL if a purchaser relied on label claims that later proved to be non‑compliant. However, that would be a claim under the ACL, not under these regulations. The lack of litigation may also reflect the practical difficulty of proving that a specific container of fertiliser was non‑compliant at the time of packaging or sale, especially for products that may have been on the shelf for years before enforcement. The regulations apply to the act of packaging and sale, not to possession, so a retailer who did not package the product and bought it from a supplier may argue that they did not “package” it, but the offence of selling is strict. In a prosecution, the court would need to determine the phosphorus content and N:P ratio at the time of packaging or sale; for concentrated solids, that requires measuring the diluted weight, which introduces uncertainty.

The most dangerous trap is the reliance on label wording to determine which category a fertiliser falls into. A product labelled “all purpose garden and lawn food” is all purpose fertiliser, not garden fertiliser, and thus after 2013 is limited to 1% phosphorus, not 2%. The same product could be relabelled as “garden fertiliser” (omitting the reference to lawns) and then qualify for the 2% limit, but that would mislead consumers who need it for lawns. The regulations create a perverse incentive to label ambit claims narrowly to avoid the stricter standard. Another trap: the transitional exemption for processed organic fertiliser and controlled release fertiliser in regulations 7 and 9 ends on 1 January 2013. A manufacturer who continued to produce blood and bone or dynamic lifter products for small‑use containers after 2012 without reformulating would be in breach of regulation 8 or 10, even though the product is organic and historically exempt. Blood and bone is typically around 6-12% phosphorus and often has low nitrogen relative to phosphorus, so it also fails the N:P ratio requirement (regulation 12) if it contains more than 0.5% phosphorus and has a N:P ratio lower than 5:1. Organic fertiliser makers would need to add a nitrogen source or dilute the product with filler to comply, or stop selling it in small containers. The N:P ratio requirement is not widely known among consumers and garden retailers; it affects any fertiliser with more than 0.5% phosphorus after 2013, covering most blended products. The ratio must be between 5:1 and 20:1. A product with 5% nitrogen and 2% phosphorus has a ratio of 2.5:1, which is too low. The duty is on the packager and seller, not the label maker, so a retailer who buys in bulk and repackages into small containers must ensure the ratio compliance. The measurement rule in regulation 5(2) is often missed. For a concentrated solid, the phosphorus percentage is calculated using the weight of the fertiliser after dilution at the manufacturer’s recommended rate. This means that a concentrated powder that instructs “add 100 g to 10 L water” has its phosphorus percentage calculated based on the weight of 100 g powder plus 10 kg water (approximately 10.1 kg), not the 100 g dry weight. If the dry powder is 20% phosphorus, the diluted weight percentage is about 0.2%. That is well under 1%, so the product is compliant. But if the same product is also sold as a ready‑to‑use granular form at 5% phosphorus, the granular form fails the 1% all purpose limit. Manufacturers might shift to concentrates to avoid compliance costs, affecting consumer choice and potentially increasing the cost of fertiliser per application. The measuring device requirement in regulation 17 applies only to liquid fertiliser and concentrated solid fertiliser. A small use container of liquid fertiliser must include a measuring device (like a cap measure or spoon). If the measuring device is not securely attached and falls off, the container is non‑compliant. The regulation does not specify what type of measuring device is acceptable; presumably it must be suitable for measuring the fertiliser in accordance with the label’s dilution rate. A packager who supplies a measuring device that is not accurate enough could face liability under other laws, but not under this regulation. Another trap: regulation 16(2) prohibits selling a small use container of fertiliser unless it is labelled in accordance with Part 3. If a retailer receives a shipment from a manufacturer without a label or with an incorrect label, the retailer commits an offence by selling it. There is no grace period for relabelling. The six‑month grace period in regulations 7(7) and 9(7) applied only to the initial sale of garden and lawn fertiliser before 2013, and does not apply to labelling. The labelling requirements commenced on 1 January 2013, with no transitional period.

For a manufacturer or packager, the first step is to determine whether fertiliser is caught: is it a fertiliser as defined in regulation 4? If yes, is the container a small use container (≤50 kg or ≤50 L)? If yes, check any exemption: is it manufactured for sale to a person outside WA, or sold to a person in the business of manufacturing fertiliser (regulation 6)? If no exemption applies, the fertiliser must comply with the content caps and labelling and measuring device requirements. For content compliance, the manufacturer must formulate the fertiliser so that, for garden fertiliser, phosphorus is ≤2% by weight after 2013; for lawn fertiliser ≤1%; for all purpose fertiliser ≤1%. For all categories after 2013, if the product contains more than 0.5% phosphorus, the N:P ratio must be between 5:1 and 20:1. The phosphorus percentage must be calculated in accordance with regulation 5: for liquid and concentrated solid fertiliser, use the weight of the fertiliser when diluted at the manufacturer’s recommended rate. That means the manufacturer must first set a recommended dilution rate, then calculate the diluted weight, then determine whether the phosphorus percentage on a diluted basis meets the cap. For a concentrated solid, the cap will almost always be achievable because the undiluted product’s phosphorus is diluted with water. The risk is that the recommended dilution rate is too low (i.e., the manufacturer recommends a very concentrated mixture), resulting in a diluted phosphorus percentage closer to the undiluted value. A manufacturer could set a dilute‑enough recommendation to ensure compliance, but that may make the product less convenient or effective. The N:P ratio must also be calculated on a diluted weight basis? Regulation 12 does not specify measurement method, but regulation 5 applies to “a reference in these regulations to a percentage by weight of an element”. The N:P ratio is not a percentage by weight of an element, it is a ratio of percentages. However, because the phosphorus percentage is determined under regulation 5 and the nitrogen percentage would likely be determined similarly, the ratio should be calculated using the diluted weight percentages for both nutrients to be consistent. A cautious manufacturer would calculate both elements on the same diluted basis. Labelling compliance requires the label to state phosphorus concentration %wt/wt (using the diluted weight for liquids and concentrates), the N:P ratio if regulation 12 applies, the recommended dilution rate for liquid and concentrated solids, and the recommended application method and use. The label must be on the outside, legible, indelible, contrasting, with characters at least 2 mm high. The label must be in English but may be repeated in another language. For liquid and concentrated solid fertilisers, a measuring device must be included , this could be a cap that has graduations, a measuring spoon, or a syringe. The device must be suitable for measuring the fertiliser to assist in application per the label. The manufacturer should ensure the measuring device is part of or attached to the container so it is not easily detached. A packager who buys bulk fertiliser and repackages into small containers must ensure the repackaged product complies with all content and labelling requirements , the bulk product may be formulated for a different use and may have a different phosphorus level. A retailer should only accept stock from a manufacturer who provides compliance documentation. However, the retailer remains liable for any non‑compliance. A practical step is to request a certificate of analysis for phosphorus content and N:P ratio, and ensure labels match. For liquid and concentrated solids, check that the measuring device is present and attached. If a retailer suspects non‑compliance, they should not sell the product and should return it to the supplier. The low infringement notice amounts ($250 first offence, $500 subsequent) may tempt some retailers to avoid the cost of returns and simply sell through, but the $5 000 court maximum for a single container applies if prosecuted. A prudent business will conduct an internal audit of all fertiliser products sold in small containers, categorise each according to the label wording, test phosphorus content and N:P ratio using an accredited laboratory, and adjust formulations or labels accordingly. Any transitional organic or controlled release products that relied on the pre‑2013 exemption must have been reformulated or withdrawn from the retail consumer market by 1 January 2013. If a manufacturer still sells blood and bone in a 25 kg bag labelled for garden use, it must now have ≤2% phosphorus and an N:P ratio ≥5:1. That is chemically impossible for pure blood and bone, so the manufacturer must either blend with a low‑phosphorus filler or nitrogen source, or sell only to fertiliser manufacturers or for export.