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Indiana Agricultural Law Foundation May 2017 Issue
InAgLaw Hdr

Dicamba: Class Action, Drift and Volatilization

John Shoup
John Shoup

Crop producers are eager to adopt new technologies to maximize yield and combat weeds, particularly those that are increasingly herbicide resistant. What happens when a seed company releases an herbicide-resistant seed before the Environmental Protection Agency approves a corresponding herbicide label for the product? In January, a class action complaint was filed against Monsanto in the U.S. District Court for the Eastern District of Missouri based on this fact pattern.

In 2015-2016 Monsanto began to market Xtend cotton and soybean seed. Xtend seeds are genetically modified to resist the herbicides dicamba and glyphosate (Roundup). This genetic modification allows farmers to plant Xtend seeds and then apply those herbicides to the Xtend crops without causing injury. Monsanto’s Xtend crops are tolerant to both Roundup and dicamba. The diminishing efficacy of Roundup makes dicamba a necessary ingredient to address increased weed resistance.

Here is the issue: When Monsanto distributed and sold its Xtend seeds to farmers in the affected states (Alabama, Arkansas, Illinois, Kentucky, Minnesota, Mississippi, Missouri, North Carolina, Tennessee and Texas), it did so without releasing a corresponding, approved herbicide for use as a complete “crop system.” The dicamba-based herbicides that Monsanto has designed for use on Xtend seed are called VaporGrip. Monsanto claims VaporGrip will have a lower volatility formulation that will minimize drift.

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