(concurring in part, dissenting in part)—I concur in the amount of damages awarded arising from a breach of implied warranty of merchantability, which arose from the negligent treatment of seed wheat with a fungicide. I concur in the award of attorney's fees.
I dissent from the majority holding that the Consumer Protection Act, RCW 19.86, applies in this case; hence, I would disallow the penalties provided under that act against a third party defendant, Columbia Producers, Inc. It was not sued by the plaintiff. It was not in privity of contract with the plaintiff. It did not induce plaintiff to do anything in reference to the seed. Columbia's breach of warranty regarding the seed was one which arose out of its overtreatment with fungicide caused by a leak in its seed treatment machine which was fed from a rusty pipe.
As stated by the majority, the plaintiff Haner sued Quincy Farms, not Columbia Producers, Inc. The obvious reason Haner sued Quincy Farms is because Haner contracted only with Quincy Farms for the delivery of a certain amount of seed. Quincy was unable to fulfill the order and asked Columbia to produce the balance. The finding of fact *105by the trial court is that it was a sale by Quincy to Haner. There is no finding of a sale by Columbia to Haner. The seed was ordered from Quincy, not from Columbia.
The effect of the majority holding is to bring within the Consumer Protection Act all sales which breach an implied warranty, even though breach of the warranty may arise from simple negligence, and to bring such person who had no privity or contact with the ultimate consumer within the sphere of the act.
A short review of some of the cases involving the application of the Consumer Protection Act in the state of Washington is in order to demonstrate the position of this dissent. In State v. Reader's Digest Ass'n, 81 Wn.2d 259, 501 P.2d 290 (1972), the defendant engaged in an advertising promotion called a sweepstakes. The court held this was a lottery and cited Const, art. 2, § 24, which prohibits lotteries and makes them a criminal offense; therefore, this activity was illegal, against public policy, and per se unfair. Hence, it is within the Consumer Protection Act.
In Lightfoot v. MacDonald, 86 Wn.2d 331, 544 P.2d 88 (1976), involving an action against an attorney for alleged negligence and breach of an agreement, plaintiff alleged the acts of the attorney were deceptive and unfair, a departure from the standard of care reasonably expected of an attorney, and sought cover under the Consumer Protection Act. As stated therein, the Consumer Protection Act was designed to protect the public from acts or practices which are injurious to consumers and not to provide an additional remedy for private wrongs which do not affect the public generally. It was held the act did not apply.
Under RCW 19.86.020, which was designed to complement the body of federal law, it was the intent of the legislature that the courts be guided by the interpretations given by the federal courts to the various federal statutes dealing with the same or similar matters. It is further stated that the intent of the legislature by this act would not be construed to private acts or practices which are not injurious to the public interest. There is no private remedy *106provided in the federal act, as all enforcement is left in the hands of the Federal Trade Commission. The federal statute does not provide private persons with an administrative remedy for private wrongs and the community's interest in seeing that private rights are respected is not sufficient public interest. Lightfoot cited the federal cases which held it was not the purpose of the antitrust laws, the federal equivalent of our Consumer Protection Act, to furnish treble damages where there have been only the ordinary breaches of contract.
In Salois v. Mutual of Omaha Ins. Co., 90 Wn.2d 355, 581 P.2d 1349 (1978), the court may have moderated Lightfoot v. MacDonald, supra. It was concerned with the application of the Consumer Protection Act and the post-occurrence conduct of the carrier. In deciding that the Consumer Protection Act applied, the court referred to RCW 48.01.030, which specifically states: "The business of insurance is one affected by the public interest, ..." Since the defendant's conduct had violated this statute, it was unlawful and against public policy; thus, it constituted a per se violation of the Consumer Protection Act, RCW 19.86.020.
In Anhold v. Daniels, 94 Wn.2d 40, 614 P.2d 184 (1980), the plaintiff Anhold, an unemployed single woman, inexperienced in business, was approached by the defendant at a social gathering. He identified himself as specializing in business opportunities. The evidence showed Daniels and the other defendant, Munger, practiced persuading inexperienced people to invest in various types of ventures. The court referred to the holding in Lightfoot v. MacDonald, supra, that an act or practice of which a private individual máy complain must be one which also would be vulnerable to complaint by the Attorney General under the act. Since Lightfoot, the court has held the Consumer Protection Act applies and a private party may bring an action under it where there is a specific legislative declaration that the public has an interest in the subject matter of the action, citing Salois v. Mutual of Omaha Ins. Co., supra. But if *107there is a specific legislative declaration that the public does not have an interest, the act does not apply. Brown v. Charlton, 90 Wn.2d 362, 583 P.2d 1188 (1978). The statutory sections may not require a private party to demonstrate that the public interest be affected; nevertheless, under the recent cases, litigants must sustain an injury as a result of unfair or deceptive acts or practices in the conduct of any trade or commerce.
The court in Anhold said that the language vulnerable to complaint by the Attorney General is either too restrictive or too all-inclusive. It is too restrictive if it confines private actions to the large and egregious cases with which the Attorney General has in the past concerned himself. It is too all-inclusive if its sweep encompasses so many cases that the act becomes another remedy for virtually all private wrongs. As the majority states, Anhold requires an unfair or deceptive act which induced the plaintiff to act.
Under the federal act, before the Federal Trade Commission may file a complaint, the public interest must be specific and substantial. In my view that means it must not be minimal or episodic.
Here, there was no showing that there were any inducements, deceptive advertisements, sales techniques, or false representations which induced the sale. How can that requirement cover the delivery in good faith to a third person of seed for planting which, unknown to the seller, was overtreated or overcoated with a fungicide, and only in one batch through the malfunctioning of the coating machine? Like other cases, there is no showing that this happened before, that it is the practice of the defendant seller, or that it is likely to happen again. Certainly, we may assume that the defendant would make every effort to cure the malfunctioning of its seed treating equipment. Otherwise, its seed business would be destroyed. Actually, there is an action for damages, but not for the punitive aspects of the Consumer Protection Act. This was a private sale and not to plaintiff. Haner simply wanted to buy seed. The 85 percent label was never seen by Haner or relied upon by him *108or Quincy. It did not figure in the sale. I also believe the difference between 83 and 85 percent is subject to the de minimis rule. It is hardly enough to call down the full panoply of consumer protection penalties, even if it were relevant in this case.
Lidstrand v. Silvercrest Indus., 28 Wn. App. 359, 623 P.2d 710 (1981), cited by the majority, repeats the test that a Consumer Protection Act claim may be based on a per se violation of a statute or on a deceptive practice unregulated by statute but involving the public interest, and held that the act did not apply for a breach of warranty in the sale of a mobile home. This is the precise status of the facts in the case at bench and supports this dissent.
Breach of the implied warranty of merchantability is not in the same category as unfair insurance practices statutes, antilottery statutes, or unfair motor vehicle practices statutes. See Salois v. Mutual of Omaha Ins. Co., supra; State v. Reader's Digest Ass'n, supra; Dempsey v. Joe Pignataro Chevrolet, Inc., 22 Wn. App. 384, 589 P.2d 1265 (1979). I have found no cases which apply the per se test to a breach of an implied warranty of merchantability of all goods sold in commerce where the damage arises out of simple negligence. I do not think a simple act of negligence in a sale is affected with a public interest.
If the Consumer Protection Act is to apply in every case where there has been a misstatement, or every sale in which there has been a breach of warranty, or negligence, or the most minimal misrepresentation, even when there is no broad public interest, then every sale would become a consumer protection case. Such an interpretation can transfer almost all sales lawsuits into that category. I do not believe the act was intended to produce such a result, or that it would be a wise economic policy.
An interesting question is presented in the award of attorney's fees to the chemical manufacturer, Olin, against the distributor who overtreated the seed, Columbia Producers. The plaintiff did not sue the manufacturer. Had this been an action between Columbia and Olin, no attor*109ney's fees would lie in Olin's favor. But when Columbia joined Olin as an additional party defendant and exposed it to the charges and burdens of Haner's lawsuit, attorney's fees should lie under the principle of Armstrong Constr. Co. v. Thomson, 64 Wn.2d 191, 390 P.2d 976 (1964). Haner did not seek to burden Olin with litigation, but Columbia pushed Olin into the line of fire. For this, Columbia should pay.
Reconsideration denied June 16, 1981.
Review granted by Supreme Court September 25,1981.