Arkansas Farmers Sue Monsanto, BASF, DuPont Over Dicamba Damage

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By Christopher Brown

Monsanto Co., BASF Corp., and DuPont face a class-action lawsuit from farmers who claim their crops were damaged by the herbicide dicamba, a new legal front against producers of soybeans and cotton resistant to the weed killer.

The lawsuit stems from a wave of complaints from farmers in Arkansas, Missouri, Tennessee and elsewhere who say that their crops were damaged by dicamba being sprayed on nearby fields planted with dicamba-tolerant corn and soybeans that were developed primarily by Monsanto ( Smokey Alley Farm P’ship v. Monsanto Co. , E.D. Mo., No. 4:17-cv-02031, 7/19/17 ).

The Monsanto seeds—Roundup Ready 2 Xtend Soybeans and Bollgard II XtendFlex cotton—were designed to be used with newly developed versions of dicamba that were said to be less prone to drift onto neighboring fields and cause crop damage. But Monsanto began selling the seeds to farmers before the Environmental Protection Agency had approved the new versions of dicamba. Without that approval, farmers who had invested in the seeds turned to older and more drift-prone versions of dicamba to control weeds, the lawsuit said.

Monsanto’s haste in releasing the seeds put profits over responsibility, and exposed thousands of farmers who chose not to use Monsanto’s seeds to the risk of crop damage, the lawsuit said.

The new versions of dicamba are known as Xtendimax, made by Monsanto; Engenia, made by BASF; and FeXapan, made by DuPont. DuPont also licenses a variety of Monsanto’s Xtend soybean.

Drift Resistant

The lawsuit also claims that the new versions of dicamba are not in fact drift-resistant, but rather are prone to drift off target, especially during temperature inversions that are very common in the mid-south region and which can lead to crop damage miles away from the source. This has led to continuing reports of crop damage even after the arrival of the new dicamba versions on the market during the 2017 growing season, it said.

The lawsuit also brings antitrust claims under the Sherman Act, with the argument that farmers who have suffered crop damage from dicamba will be forced to protect themselves by buying Monsanto’s dicamba-tolerant seeds.

Paul A. Lesko, a partner with Peiffer Rosca Wolf Abdullah Carr & Kane PLC in St. Louis, who represents the farmers, told Bloomberg BNA July 21 that the lawsuit currently includes two classes—a nationwide class and a class of Arkansas farmers—but that it likely will be amended later to include other state classes. He said that the number of affected farmers is “certainly in the thousands.”

In separate statements, Monsanto, DuPont and BASF declined to comment directly on the lawsuit, but defended their products.

“Monsanto did not sell a dicamba herbicide for the 2016 season and has taken extensive steps to educate growers and applicators utilizing XtendiMax with VaporGrip Technology of the application requirements for the 2017 season,” the comapny said in a statement. “We remain confident in growers’ ability to follow all application requirements and abide by the law.”

DuPont said that its soybean version and its FeXapan dicamba version had been approved by federal and state regulators.

“This year thousands of growers have used these products properly and successfully to meet their challenges with resistant weeds and productivity,” it said.

To contact the reporter on this story: Christopher Brown in St. Louis at chrisbrown@bna.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

For More Information

The lawsuit can be found at http://src.bna.com/q0j

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