Dicamba

Are you a farmer who suffered crop damage caused by another person's use of the herbicide dicamba?  If so, you may be able to recover monetary compensation for your damages and loss of your crops.  The companies that sold dicamba herbicides were aware of the potential harm that the use of the products could cause, and continued to sell them anyway.  

Our law firm is experienced in helping farmers with crop-related lawsuits.  We feel the manufacturers of these harmful products should be held responsible for any crop loss you have suffered.  

In this article:

• What is Dicamba Herbicide?
• Dicamba Herbicide Lawsuits
• Why is Dicamba Now a Problem?
• The Problematic Overlap in Time
• Were the Makers of Dicamba Aware of the Problem?
• The EPA's Involvement
• What States Have Taken Action?
• June 2020: Dicamba Herbicides Kicked Off Market by Federal Court
• Signs of Dicamba Crop Damage
• Seek Expert Legal Help

The brand names under which the herbicide dicamba has been sold include, but are not limited to, the following: 

• Vanquish
• Oracle
• Diablo
• Banvel
• Dianat

The herbicide is intended to kill broad-leaf plants.  It is regularly used in the garden and home settings in addition to its broad agricultural usage.  Dicamba can be found in more than 1,100 products. 

Its mechanism for use with broad-leaf plants is that it causes fast and abnormal growth by acting as a plant hormone.  This results in eventual plant death.  

Dicamba can cause tremendous damage to non-resistant crops.  It has ruined entire crop fields, and as a result, has become the subject of nationwide lawsuits. 

Recently, a Missouri farmer sued Monsanto and BASF, manufacturers of dicamba-based herbicides after poisonous dicamba clouds drifted onto his property and destroyed 30,000 of the farmer's peach trees.  The jury awarded the farmer $265 million in damages.  Those damages were broken down to include $15 million in compensation and an additional $250 million in punitive damages.  The punitive damages were aimed at the German owner of Monsanto, Bayer AG, and BASF.  The jury decided that the two corporations had conspired to create what the farmer's lawyer termed as an "ecological disaster" for the sole purpose of increasing their profits at the expense of farmers such as the plaintiff in the case.  

Following the peach farmer case, over 100 farmers filed lawsuits in state courts.  Some of those cases have been consolidated into a federal court case in Missouri entitled Dicamba Herbicides Litigation.

There is also a class-action lawsuit filed in Arkansas that invites parties across the country to join in the suit against BASF and Monsanto.  The class-action suit alleges that the corporations failed to provide a formulation of dicamba that was safe to use with seeds that were dicamba-resistant. The Arkansas class-action lawsuit currently includes plaintiff farmers from the following states: 

• Texas
• Tennessee
• North Carolina
• Mississippi
• Minnesota
• Kentucky
• Illinois
• Arkansas
• Alabama

The Arkansas class-action lawsuit may cover any party who had crops that were not dicamba-resistant damaged by the herbicide. An estimate by the University of Missouri Crop Sciences Department is that over 2,700 farms have suffered such damage.

Dicamba has been used for decades.  It was approved for use only before and after growing seasons because it is a volatile compound, which means that it can become vapor and disperse beyond its application area. By limiting the use of dicamba to before and after growing seasons, this helped prevent crop damage since there was minimal risk to crops after the harvest or before the crops had been planted.

Then, along came resistant pigweed.  Pigweed is a broad-leaf weed that is a problem for a lot of farmers, but especially those who grow soybeans.  In recent years, dicamba use increased in an attempt to get a handle on pigweed. The weed is resistant to many herbicides and is very difficult to remove by hand. Because glyphosate-resistant pigweed strains have become rampant, farmers have not been able to rely on Roundup (a glyphosate-based herbicide sold by Monsanto) to deal with pigweed.

Pigweed is not the only weed that has become glyphosate-resistant.  To address the glyphosate-resistant weeds, Monsanto has developed seeds that are glyphosate- and dicamba-resistant.  In theory, by using seeds that are resistant to glyphosate and dicamba, farmers could spray both herbicides to kill pigweed and other similarly resistant weeds without damaging their crops.  

While Monsanto was developing the genetically modified and resistant seeds, they were also working with other chemical companies including BASF to get the U.S. Environmental Protection Agency (EPA) to approve low volatility versions of dicamba so farmers could (theoretically) use the chemical during growing seasons without damaging nearby farms that did not use genetically modified seeds.

Monsanto began selling glyphosate- and dicamba-resistant cotton (Bollgard II XtendFlex Cotton) and soybean (Roundup Ready 2 Xtend Soybeans) seeds several months before approval by the EPA of the low volatility dicamba. This resulted in a problematic overlap in time.  Certain farmers that purchased the herbicide-resistant seeds were not willing to await FDA approval of the new formulation of dicamba.  They illegally sprayed their fields with the old dicamba, which then drifted onto neighboring farms, causing thousands of acres of crop damage.  The phenomenon has been referred to as dicamba drift.

The lawsuits against BASF and Monsanto allege that the corporations released to the market a dicamba-resistant seed with no safe version of the herbicide to apply to those resistant seeds. Farmers who had bought the dicamba-resistant seeds felt that they had no choice but to illegally use the older volatile version of the herbicide to deal with pigweed.  Winds then carried the old dicamba far beyond the application areas, causing extensive damage to non-dicamba-resistant crops on neighboring farms. It is thought that growers of conventional soybeans may have been particularly affected by damage caused by dicamba drift.

The EPA did ultimately end up approving BASF and Monsanto's new dicamba formulas.  However, there are continuing reports of crop damage, even with the less-volatile versions.  A study done by the University of Arkansas reveals that the new dicamba versions are not nonvolatile, only less volatile.  As such, dicamba drift looks like it will continue to be a problem.

In addition to the lawsuits filed against the private corporations manufacturing dicamba herbicides, a coalition of conservationists and farmers have sued the EPA for approving the damaging herbicide first in 2016 and again in 2018.

The lawsuit filed by the peach farmer brought to light documents that convinced the jury of the corporations' liability, including hundreds of BASF and Monsanto corporate documents that demonstrated the companies' awareness of the harm that their products would cause.  These documents were generated even as the companies were claiming to the public that the opposite was true.  One document created by a BASF employee called complaints of dicamba crop damage a "ticking time bomb" that had exploded.  

Monsanto and BASF formed a collaboration in 2011 in which they conspired to get FDA approval for dicamba herbicide.  In 2016, The EPA issued a conditional two-year approval of Monsanto's dicamba herbicide.  Both companies sold their dicamba herbicide products in the United States beginning in 2017.  They then reformulated and presented a less volatile dicamba formulation for approval, but during this petition for approval, they refused to allow independent testing.  

Despite the fact that in 2018, farmers had filed over 4,000 official complaints of soybean crop damage caused by the use of dicamba, and in October 2018, the EPA re-approved the herbicide for another two years.

Arkansas has outright banned the use of dicamba herbicide.  Missouri initially banned its use but rolled back the ban and replaced it with additional restrictions on dicamba usage.  Tennessee implemented restrictions on the herbicide's use, and Kansas is conducting investigations into farmer complaints.

On June 3, 2020, three types of Dicamba-based weed killers were ordered off the market by the Ninth Circuit Court of Appeals.  By its ruling, the Circuit Court revoked the approval previously issued by the Environmental Protection Agency (EPA) in 2018. It also puts an end to Bayer's plan to seek reapproval of their Dicamba products for 2021 and beyond.

The following are signs and symptoms associated with dicamba crop damage.  This list is not definitive:

• Annual flowers with roots above ground
• Twisted leaves
• New growth with skinny leaves
• Leaf curling

Signs of crop damage may take weeks to appear, but usually, days after the application, a farmer will notice troubling changes in the plants.  The damage is usually widespread rather than isolated, given the diffuse vapor of the herbicide cloud.  Comparing adjacent crops for damage, or comparing plants of different species, can help determine whether the crop damage was caused by drifting herbicide vapor.

The video below discusses one farmer's issues with crop damage caused by dicamba.

Contact our law firm for a no-cost case evaluation. We have helped farmers with crop-related litigation and will be able to provide expert advice if you have suffered crop damage from the use of dicamba-based herbicides.  The manufacturers of dicamba herbicides were aware that their products could cause extensive crop damage yet still continued to market and sell them.  We believe those manufacturers should be held accountable for damages.  

I'm Ed Smith, a Fresno Farm Accident Lawyer. If you are a farmer who has suffered crop damage caused by another person's use of the herbicide dicamba, call me for free, friendly advice at (916) 921-6400 or (800) 404-5400.

We are members of the National Association of Distinguished Counsel and the Million Dollar Advocates Forum.

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Editor’s Note: This page has been updated for accuracy and relevancy [cha 7.10.20]

Photo: Ken Ritchie on Pixabay

mm cha [cs 1612]

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