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