If you haven’t been following the news since early June, get ready for a few big surprises.
Over-the-top dicamba products, Engenia, FeXapan and XtendMax spent time under the court’s microscope, resulting in EPA issuing a final cancellation order for these products. The same plaintiffs sought vacatur for Enlist Duo herbicide this year.
Since 2017, the National Family Farm Coalition and the Natural Resources Defense Council have argued in court that allowing over-the-top dicamba application on soybeans and cotton violates the Endangered Species Act (ESA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and should be vacated.
On June 3, 2020, three California judges with the U.S. Court of Appeals for the Ninth Circuit agreed on the grounds of FIFRA violations and immediately vacated the three products available since 2017. Tavium was not included in this ruling, as it wasn’t available until 2020.
Dicamba’s registration was set to expire Dec. 20, 2020, because it was a two-year conditional registration. However, the cancellation has some concerned about the products’ chances to receive a new registration for 2021 and beyond.
“It’s going to be harder, and it might require going back and performing additional testing,” says Paul Goeringer, University of Maryland Extension legal specialist. “They might have to do this testing to prove they can meet Ninth
The 2020 vacatur lays out a road map that requires EPA to scrutinize applications for new products more vigorously than it did with the three dicamba products, says Todd Janzen, president of Janzen Agricultural Law.
For 2021 registrations, dicamba manufacturers (BASF, Bayer, Corteva Agriscience and Syngenta) will need to provide EPA data that addresses court FIFRA concerns and data concerns in addition normal requirements.
“We’re working with EPA to address those concerns,” says Alex Zenteno, Bayer dicamba product manager. “So far we have submitted multiple new data and different analysis — including analysis by independent academics. We expect changes to the label for 2021 when, and if, issued.”
Any label changes are a question mark, and the timing for EPA’s decision on dicamba isn’t certain.
“We would encourage the EPA to make the decision as soon as they possibly can,” says Paul Rea, BASF senior vice president agricultural solutions, North America. “Dicamba has demonstrated its value with over 60 million acres of dicamba-
tolerant plants. We’re expecting registration hopefully before the last month of this year.”
The 2019 through 2020 registration was announced Oct. 31, 2018.
Dicamba requires herbicide-tolerant soybeans and cotton, so whatever happens to the chemical has a domino effect.
No companies reported providing seed refunds after the June 3, 2020, cancellation of the three products, as existing stocks could be used.
Farmers question the value of the seed products if the herbicide is not available. Those concerns will mount if registration isn’t granted.
Companies invest time and money inserting genetics into Xtend soybeans and cotton. What does the future hold?
“It’s very important to Bayer, and we do not plan to make any changes. We will continue selling Roundup Ready 2 Xtend soybeans,” Zenteno says. “We are getting ready for the launch of Xtend Flex soybeans right now. We expect rapid market penetration, on par with the first year of Roundup Ready 2 Xtend soybean penetration following the full system approval, which was about 20 million acres.”
In 2020, 60 million acres of Xtend soybeans and cotton were planted. If granted EU approval, Bayer plans to launch Xtend Flex soybeans with tolerances to glyphosate, dicamba and now glufosinate.
While BASF, Corteva and Syngenta sell dicamba products and Xtend seed products, they have alternative weed control seed portfolios to dicamba tolerance.
“It’s too early to speculate, but we know farmers need great herbicide resistant traits,” Rea says. “BASF has options, but we recognize, as do farmers, the value of dicamba.”
Recent Positive Outcome
In late July, the Ninth Circuit announced a positive opinion in regard to the lawsuit against Enlist Duo herbicide. Judges upheld the product’s registration.
The petitioners claimed EPA violated parts of the ESA and FIFRA when granting the product’s registration. Judges disagreed on all counts, with the exception of risk to Monarch butterflies. However, they provided a remedy for the butterfly error without removing the product.
“Corteva is pleased with the Ninth Circuit decision to reject petitioners’ attempts to vacate the registration of Enlist Duo herbicide. The registration of Enlist Duo remains in place and this leading weed control product can continue to be sold and used by farmers,“ the company said in a statement.
The petitioners said EPA failed to protect the Monarch butterfly and the court erred in its conclusion by allowing continued use of Enlist Duo herbicide.
A Slippery Slope
If plaintiffs set their sights on additional herbicides, many wonder what this means for the future of agricultural chemicals.
“If these lawsuits continue with poorly based decisions, they will be a deterrent to manufacturers to invest in newer pesticide and seed technologies,“ says Richard Gupton, senior vice president, public policy and counsel for the Ag Retailers Association.
“The industry would be required to revert back to older approved pesticide products.”
Whether litigation of pesticides is the new normal or not, it’s clear soybean herbicides will continue to be in the court spotlight in the coming years. Take the time to understand product labels and follow them prior to use.
For complete coverage of dicamba-related court news, federal registration updates and other in-season reporting, visit AgWeb.com/dicamba
A Look at Dicamba’s Past
While dicamba has made headlines more in the past five years, it has actually been around for almost 60 years. With its future in question, here’s a brief snapshot of its history.
1962 Original dicamba formulation approved.
2015 Seed trait with dicamba tolerance approved.
2016 Seed trait launched without approved over-the-top herbicide, complaints of off-label dicamba use reported.
2017 Herbicides XtendiMax, FeXapan and Engenia approved, farmers cite high degree of weed control, complaints of off-target movement reported.
2017 Lawsuit filed against Monsanto for dicamba’s in-season use concerning Endangered Species Act and Federal Insecticide, Fungicide, and Rodenticide Act.
2018 EPA issues conditional approval for 2019 and 2020 seasons, continued complaints.
2019 60 million cotton and soybean acres planted, continued off-target damage complaints reported.
2019 Tavium approved for over-the-top use, 2020 launch.
2020 Court sided with plaintiff, federal registrations vacated, BASF and Corteva products added to complaint, EPA issued final cancellation order for XtendiMax, FeXapan and Engenia.
2020 Damage reports continue, although varied in severity from state to state.
To learn about the process to register a pesticide, visit AgWeb.com/pesticide-registration