dissenting.
The statutes relevant to this case are ORS 633.310 to 633.495. Under these statutes, all manufactured or processed products sold for addition to the soil as plant food are classified as either commercial fertilizer, agricultural minerals, or lime.1 This classification scheme permeates the statutory requirements for registration, ORS 633.361, labeling, ORS 633.320 — 633.340, testing, ORS 633.390, etc.
The distinction between a fertilizer and an agricultural mineral is whether it contains, respectively, more or less than 5 percent of nitrogen and/or phosphorus and/or potassium. Compare ORS 633.310(1) with 633.310(4). Under these definitions, petitioners’ product here in question is an agricultural mineral.
In applying ORS 633.420, which prohibits misleading labeling, I think it was reasonable for the Department of Agriculture to conclude that it was potentially misleading for petitioner to market their agricultural mineral as a fertilizer. A consumer could conceivably purchase petitioners’ product, if labeled as fertilizer, without realizing it is different from a competitor’s product that is literally fertilizer under ORS 633.310(4).
In reversing the Department’s determination to *322that effect, the majority relies upon the dictionary and a trade association publication. I agree that in common usage, petitioners’ product can be called a fertilizer. But the question is not common usage, but the specific statutory definition in ORS 633.310(4); I am not aware of any rule that requires the legislative assembly to define words the same as does Webster. And under the statutory definition and the statutory scheme in which it appears, I conclude, as did the Department, that the legislative assembly intended that manufactured products containing less than 5 percent of the three specified elements cannot be labeled and marketed in Oregon as fertilizer.
I respectfully dissent.
THORNTON, J., joins in this dissent.The statutes expressly exempt certain natural soil amendments that are not man-made, specifically, sand, soil, manure, hay, straw, peat and leaf mold. This would seem to be a sufficient answer to the majority’s concern about whether it is possible to market manure as a fertilizer.