2016 and 2017 have seen large numbers of complaints filed of drift damage in the Midwest and South. The drift damage is due to dicamba application on new Monsanto varieties of cotton and soybeans that allow for over-the-top applications of dicamba. I’ve written earlier about a dicamba drift class action lawsuit filed in Missouri, but a recently filed one in the Eastern Federal District of Missouri. The new class action is being brought by a group of Arkansas farmers who planted older varieties of soybean and cotton that was not resistant to dicamba.
In 2015, Monsanto released a new variety of cotton, XtendFlex cotton, which allowed for over-the-top applications of dicamba. In 2016 saw the release of XtendFlex soybeans that also allowed for over-the-top applications of dicamba. At the time of the releases, the dicamba to be used over-the-top had yet to be approved by EPA. Without an approved dicamba on the market, many producers turned to older dicambas to apply over-the-top that were not approved for this use.
The plaintiffs in this most recent class action lawsuit arguing that although Monsanto’s website and other materials highlighted that over-the-top dicamba applications were illegal till the new dicamba was approved, Monsanto’s reps in the field promoted the use of dicambas on the market for over-the-top applications.
The plaintiffs also argue that Monsanto did not present complete information to the EPA on the risks associated with the new dicamba while considering to approve it. The plaintiffs’ highlight test results by universities showing that the new dicamba may also be volatile as existing dicambas on the market and may still drift due to temperature inversion. Due to all this, the conditions in the label for the application might not be possible for an applicator to follow.
The plaintiffs are looking for class certification on two classes, a class of Arkansas plaintiffs and a nationwide class of plaintiffs. With the nationwide class, the plaintiffs have claimed that Monsanto violated the Lanham Act and is in violation of the Sherman Act. The Lanham Act is the primary law used in the U.S. to protect trademarks. One part of the Lanham Act is § 1125(a)(1)(A) that makes it illegal for companies to make false and misleading statements that could hurt consumers. Plaintiffs are arguing that Monsanto’s statements mislead producers into believing the approved dicamba was on the market and caused confusion among producers. Basically by making the new seed varieties available before the dicamba was approved confused and mislead producers into believing the new dicamba was approved.
The other four counts for the nationwide class are that Monsanto is in violation of the Sherman Act by creating an illegal soybean and cotton monopoly. The Sherman Act is a federal law that is designed to protect competition and prevent monopolies. The plaintiffs argue that Monsanto is maintaining a monopoly in the cotton and soybean markets. Currently, 90 percent of soybeans grown in the U.S. include Monsanto’s Roundup Ready technology, and 90 percent of cotton grown in the U.S. includes Monsanto’s Roundup Ready technology.
These five nationwide class claims may not survive and are dismissed. We have seen similar claims made in other class-action lawsuits involving new technologies. These claims often do not survive to trial and class members are left with only state law claims. This case is currently in the early stages so we will need to watch to see what claims survive for the nationwide class members.
The remaining claims are claims for the Arkansas class members. Violated Arkansas law by negligently bringing the new varieties to market and knew the dangers (over-the-top applications of current dicambas) that bringing these varieties to market before the approval of the new dicamba. These claims will be the one to watch moving forward. Monsanto has denied the claims.
What is next? We currently have at least 2 class-action lawsuits filed due to the dicamba drift damage was seen in 2016 and 2017. The University of Missouri has released a map of drift damage claims by state. We have seen states restrict dicambas to limit potential damage. We have been lucky in Maryland not to experience this drift damage, but our neighboring states have not been so lucky when looking at the map. Maryland producers may not qualify for the nationwide class, but other states may have producers who qualify or are considering their own class-action lawsuits.