By Jackie Pucci, From CropLife
After a tumultuous three-plus years, dicamba application is no longer legal in the United States.
Now, the ag industry awaits the U.S. Environmental Protection Agency’s response to the U.S. Court of Appeals for the Ninth Circuit’s ruling on June 3 that vacated the registration for dicamba use over the top on soybean and cotton. The 56-page ruling is linked here.
Asked to comment on EPA’s next steps, the agency stated, “EPA is currently reviewing the court decision and will move promptly to address the court’s order.”
The unprecedented ruling and ensuing confusion have led some to hold off commenting on the matter until more clarity is reached.
The Illinois Fertilizer and Chemical Association, the ag trade group representing the No. 1 soybean-producing state in the nation, remarked that is “highly unusual” for a pesticide registration to be vacated immediately.
“Even when labels are cancelled, there is a process that EPA follows and it includes instructions from EPA to the states and to the industry for the cancellation to ensue,” IFCA President Jean Payne said. IFCA reached out immediately to the Illinois Department of Agriculture, which has pesticide regulatory authority in Illinois, for guidance on the ramifications of the court ruling on use of the three products in Illinois.
“The suddenness of the court ruling has caused much confusion, and we apologize that IFCA had no clear guidance to provide until IDA was able to make that determination,” Payne said, adding, “Whatever we surmised outside of IDA’s guidance could be construed as a ‘stop’ or a ‘keep going’ message, when we have no idea which is correct. IDA was also caught off guard by this ruling and had to carefully determine the best steps in which to respond knowing of the serious implications for the industry.”
On Thursday, IDA organized a phone call with IFCA and the farm groups and advised this:
IDA legal counsel has looked at the court ruling and believes it clearly calls for the stop of use, sale and distribution of all uses of the three products: Xtendimax, Engenia and FeXapan effective immediately. The Tavium registration is not affected by this ruling. We are expecting a statement from IDA very soon but this is the situation in Illinois, and we ask for our members to abide by this determination and help communicate this serious message. More information with be forthcoming and we will communicate as soon as we have more details from IDA or EPA on the management of product already in the supply chain.
Dicamba Makers Respond
The Ninth Circuit court sided with the claim of the petitioners — the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America — that EPA’s 2018 registration decision was based on insufficient evidence and therefore violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
“EPA substantially understated risks that it acknowledged and failed entirely to acknowledge other risks,” the court’s ruling stated.
In response to the verdict, Bayer, manufacturer of XtendiMax, told CropLife, “We strongly disagree with the ruling and are assessing our options. If the ruling stands, we will work quickly to minimize any impact on our customers this season. Our top priority is making sure our customers have the support they need to have a successful season.”
Bayer said it stands fully behind XtendiMax, adding, “We are proud of our role in bringing innovations like XtendiMax forward to help growers safely, successfully, and sustainably protect their crops from weeds. We will continue working with the EPA, growers, academics, and others to maintain long-term access to this important tool.”
Bayer has frequently touted the Xtend system as a “much-needed weed control tool” for growers battling resistant weeds. Adoption of the technology has been rapid, with up to 60 million acres of Xtend soybeans planted in the U.S. last year, from 20 million in 2017.
A spokesperson for Corteva, maker of FeXapan, told CropLife it is reviewing the court’s decision, adding, “We believe dicamba is an effective weed management tool for farmers that can be used safely when used according to the label.”
As of Friday afternoon, BASF, maker of Engenia, had not updated engeniastewardship.com with information on the vacated registration. The company did not immediately respond to a CropLife inquiry.
The Ninth Circuit’s ruling did not include mention of Syngenta’s Tavium low-volatility dicamba herbicide formulation. Syngenta offered CropLife the following:
“When the EPA granted the re-approval of the conditional registration for dicamba over the top of dicamba-tolerant soybeans and cotton crops, Tavium® Plus VaporGrip® Technology herbicide was not yet registered (registration was in April 2019). As such, Tavium was not part of the ruling. We will continue to monitor the court’s ruling and evaluate any further implications that may impact our product offerings.”
Syngenta, which is owned by Chinese state-owned enterprise ChemChina, noted that its U.S. seeds business is “well-positioned to support farmers in response to the dicamba ruling,” and it is committed to providing increased choice and innovative products to meet the needs of U.S. farmers. “This ruling will not impact our ability to be a partner for farmers who demand choice in seed products, traits, and chemistries that tackle the unique challenges for their farming operation.”
The embattled herbicide had long been facing an uphill battle, which further intensified this year. In late April, the Association of American Pesticide Control Officials (AAPCO) sent a letter to EPA asking that the agency consider banning postemergence use of the herbicide. In February, jurors in federal court in Cape Girardeau, MO, sided with the state’s largest peach producer, awarding Bill and Denise Bader a total of $265 million in damages and holding Bayer-owned Monsanto and BASF equally liable for extensive dicamba drift damage to their peach trees. Bayer and BASF swiftly announced they would appeal the verdicts.
