Dicamba Legal Update: What Is Going On In the Ninth Circuit And What Is Going On With the Drift Class Action

Image of sprayer spraying soybeans. Image by United Soybean Board

This is not a substitute for legal advice.

            Dicamba has been back in the news lately in several areas.  EPA recently moved to cancel registrations for three dicamba products, XtendiMax, Engenia, and FeXapa, based on a ruling in the Ninth Circuit.  Growers have till the end of July 2020 to use existing stocks.  And Bayer, the parent company of Monsanto, recently announced settlement of around $400 million for class-action lawsuits filed against possible drift damage caused by the company’s XtendiMax product.  Although details of that settlement will not be known for a while, let’s step back and get a sense of what this means for growers.

What are the dicamba drift lawsuits about?

            Producers experiencing dicamba drift damage brought the current In re Dicamba Herbicides Litigation against the manufacturers of the dicamba-based herbicides XtendiMax and Engenia. With the federal claims, the plaintiffs argue that Monsanto and BASF Corporation violated § 1125(a) of the Lanham Act in marketing both XtendiMax and Engenia dicamba-based herbicides. The plaintiffs also allege that state claims focused on negligence claims in product design, failure to warn of negligence in the design, failure to warn of the dangers, and poor training sales of representatives for the two dicamba-based herbicides.

            Only one of the federal lawsuits has gone to trial on similar claims in In re Dicamba Herbicides Litigation. A federal jury in Bader Farms, Inc. v. Monsanto Co. awarded a Missouri peach grower $265 million in damages, $15 million in actual damages, and $250 million punitive damages. The defendants are currently appealing this decision.

Image of sprayer boom. Image by United Soybean Board

What is in the settlement?

            The exact terms of the settlement are currently unknown.  The plaintiffs and defendants have agreed in principle to settle claims of yield losses due to dicamba damage from 2015 to 2020.  About $300 million of the settlement will cover specific losses to soybean growers during that period.  Another $100 million of the settlement will go towards non-soybean damage and include the plaintiffs’ attorneys’ fees.

Who will be eligible?

            What still is not known is how broad the eligibility will be.  We do not know if this will be nationwide or limited to the class action lawsuit states.  As mentioned above, we currently know the settlement will cover yield losses due to drift damage from 2015 to 2020.  We will have to wait for the final settlement agreement to be announced to get more details on eligibility.

How will you apply?

            How to apply is another good question for which we currently do not have an answer.  When the final settlement agreement is announced we will  get a sense of the timeline for eligibility.  Since this settlement includes the 2020 crop year, we can assume that signup would not even start until after completing the 2020 harvest to allow time to determine potential damage.  Because the settlement is based on yield damage, we can assume  you will need to submit crop insurance documentation or have calibrated yield monitoring data to verify this yield loss due to dicamba drift damage.

How does this relate to the on-going lawsuit in the Ninth Circuit Court of Appeals?

            The recently announced settlement  and the lawsuit in the Ninth Circuit Court of Appeals are related in the sense that they both include many of the same dicamba-based herbicide products, and that is about it.  As mentioned earlier, the class action settlement is based around federal claims that the defendants violated the Lanham Act and state law-based tort claims.  The claims in the Ninth Circuit are related to EPA’s approval of the 2018 registration for BASF, Bayer, and Corteva dicamba-based herbicide products.

            Based on the court’s vacatur of that registration, EPA has moved to cancel the three dicamba-based herbicides’, XtendiMax, Engenia, and FeXapa, registrations.  Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA only has authority to either cancel or suspend federal pesticide registrations.  With a suspension or cancellation, EPA can set the conditions on which canceled or suspended pesticides can be sold, distributed, or used. 

            Looking forward, the 2018 registrations for these three products would have expired later this year.  EPA will need to consider the Ninth Circuit’s ruling in the process to reregister these three products.  We will have to watch this process to see if the products are reregistered in time for the 2021 growing season.

Pesticide Drift and Your Legal Liability



Image of round bales in a field.  The image is by Tana Griffith 


I recently contributed a column to Progressive Forage magazine for the April 2018 edition.  The column covers issues associated with pesticide drift and forage production.  The column covers previous court decisions involving pesticide drift liability to give an applicator a sense of what courts are looking at in determining liability.  Finally, the column covers what you should do if you suspect drift damage. Continue reading

2017 in Review: Legal Developments In Agriculture


2017 ag law developments

Image in photo from powerpoint slide developed by FPPT.com


With 2017 coming to an end, I want to take a minute to look back at many of the top legal developments impacting Maryland agriculture in the year. Many of these legal developments may seem like repeats from my 2016 update, click here to see. With those repeated issues, we in many cases have seen resolutions in a few, and with others, we will probably continue to see litigation further develop with a few issues in 2018. Moving into 2018, we will probably see new issues develop as we look at a new Farm Bill debate and cycle potentially starting.  You can listen to Tiffany Lashmet and I discuss many of these top legal developments on our joint podcast episode, click here. Continue reading

Recent MSBA Bar Journal Article – Current Legal Views Will Limit Many Claims for Damages in a Pesticide Drift Case




Sprayer in a field.  Image by United Soybean Board.

I recently wrote an article for the Maryland Bar Journal focused on pesticide drift liability.  The article is focused on the issues that have existed in previous court decisions involving drift liability.  This issue continues to grow in importance for producers.


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Arkansas Producers File Class Action Lawsuit Related to Dicamba Drift Damage



Sprayer in field by the United Soybean Board.

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. Continue reading

After Experiencing Drift Damage, What Should You Do?



Image by Greg Jordan of aerial pesticide application via flickr.com


Damage caused by pesticide drift has been in the news a lot over the past couple of years. With Monsanto releasing new varieties resistant to a new less volatile formula of dicamba, many states have seen an increase in reports of drift damages. At the winter agronomy meetings, I discussed what type of liability an applicator might face if a neighbor complained of drift damage, but what should you do if you suspect drift damage in your fields. An injured producer should contact the state department of agriculture to investigate, begin developing evidence of the damage, and consider working with the applicator/neighbor to settle the damage or consider hiring an attorney to pursue a lawsuit in court. Understanding how to handle drift damage can help the injured producer understand his/her rights in this situation. Continue reading

Pesticide Drift Liability Presentation Online



USDA Photo by Charles O’Rear


This winter meeting season, I got the opportunity to present numerous times around the state on pesticide drift liability.  This issue was in the news this summer with dicamba drift damage in the South.  A class action lawsuit has recently been filed on that issue and I discussed it in an earlier post.  You can also enjoy the fact sheet I put together on this issue here.  The video of me presenting pesticide drift is after the jump.

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Pesticide Drift Leads To Class Action Lawsuit


This post is not legal advice. 

Pesticide drift is a concern of many agricultural producers. This summer producers in the South and Midwest experienced damage to crops due to pesticide drift. Producers adopting new technology from Monsanto caused the pesticide drift. This new technology was Roundup Ready 2 Xtend soybeans and Bollgard II XtendFlex cotton. 2 Xtend products are resistant to dicamba, but not the types of dicamba on the market when Monsanto began marketing Xtend soybeans and cotton. The type of dicamba for Xtend, VaporGrip, is designed to be lower volatility that minimizes drift but was not approved by the EPA till November 2016. Hundreds of producers filed complaints after detecting crop damage due to pesticide drift this past year. Recently, a group of producers in Missouri has filed a class action lawsuit in Missouri against Monsanto seeking more than $5,000,000 in damages due to drift for producers in Alabama, Arkansas, Illinois, Kentucky, Minnesota, Mississippi, Missouri, North Carolina, Tennessee, and Texas. Continue reading