On June 3, 2020, a three-judge panel from the Ninth Circuit of the U.S. Court of Appeals ruled that thefailed to acknowledge the risks associated with over-the-top (OTT) dicamba applications and did not recognize the seriousness of reports of drift damage (OTT applications are sprayed directly over the herbicide-resistant crops during the growing season). The court revoked the registration for Bayer’s XtendiMax and other dicamba-based herbicides for use on -resistant soybeans. This action essentially bans further sales and use of the products.
Whether the Court’s action will be honored and enforced remains to be seen.
As Reuters reports, this ruling affects over half the soybeans grown in the U.S., and will have huge implications for farmers moving forward.
Note that the ruling applies to the’s 2018 conditional registration for the newly , supposedly low-volatility formulations of dicamba herbicides. Bayer and other companies are currently working with on new, 2021 re-registration for their OTT dicamba herbicides.
An excerpt from the ruling explains why the judges issued such a strong and consequential decision:
“Thesubstantially understated three risks that it acknowledged. The substantially understated the amount of DT seed acreage that had been planted in 2018, and, correspondingly, the amount of dicamba herbicide that had been sprayed on post-emergent crops. Further, the purported to be agnostic as to whether formal complaints of dicamba damage under-reported or over reported the actual damage, when record evidence clearly showed that dicamba damage was substantially under-reported. Finally, the refused to estimate the amount of dicamba damage, characterizing such damage as “potential” and “alleged,” when record evidence showed that dicamba had caused substantial and undisputed damage.
economic effects in the soybean and cotton industries. Finally, the entirely failed to acknowledge the risk that OTT dicamba use would tear the social fabric of farming communities.
We therefore vacate the’s October 31, 2018, registration decision and the three registrations premised on that decision.”
Tom Polansek, Ludwig Burger, and Sabahatjahan Contractor; “U.S. court blocks sales of Bayer weed killer;” Reuters, Date Posted: June 3. 2020, Date Accessed: June 4, 2020.
US Court of Appeals, Ninth Circuit; National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, Pesticide Action Network North America vs. U.S. Environmental Protection Agency and Monsanto Co.; no. 19-70115, Filed June 3, 2020.