On June 3 the U.S. Court of Appeals for the Ninth District issued a ruling vacating U.S. registrations of three dicamba herbicides (XtendiMax, Engenia, FeXapan). This ruling has left much confusion across the industry and producers have heard many different things from various sources about the sale and use of these products. We hope to provide some clarification below based on what we know AT THIS TIME.
Q: Why did this happen now?
A: A lawsuit was first filed in 2017 by a group of farm and environmental groups and re-filed in 2019 to cover the EPA’s 2018 re-registration of three dicamba products. In the decision last week, the court ruled that the EPA had indeed violated several obligations when it issued conditional registrations for the three herbicides under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), largely by underestimating the risks of dicamba herbicides used over a wide acreage and ongoing off-target injury. The timing of the ruling is unknown, as are many court decisions, but it could not have come at a worse time for growers in the middle of the crop season.
Q: What products are affected?
A: The ruling only pertains to the three products in the EPA’s 2018 registration, XtendiMax (Bayer), Engenia (BASF), and FeXapan (Corteva). The ruling does NOT apply to Tavium (Syngenta) but Tavium can only be legally applied to soybeans through V4.
Q: What states are affected?
A: While the case was filed in the Ninth Circuit Court in California and many of the plaintiff groups are based in the western U.S., the Ninth Circuit Court is a federal appeals court, therefore it’s order applies to farmers and retailers across the United States.
Q: What now?
A: Finally, after five days of confusion, the EPA issued an official cancellation order for these three herbicides last night which has provided some clarification to growers surrounding the sale, distribution, and use of existing stocks. Details of the order are below:
- Distribution or sale by ANY person is generally PROHIBITED except for ensuring proper disposal or return to the registrant.
- Growers and commercial applicators MAY use existing stocks that were in their possession on June 3, 2020. Such use must be consistent with the product’s previously-approved label and may NOT continue after July 31, 2020.
This July 31 window will hopefully provide most growers with options for late-season weed control but it is essential we are stewards of these products, avoid off-target impacts, and follow the guidelines outlined by the EPA. It is also critical to follow all existing label requirements in addition to these new guidelines. Keeping these tools in the toolbox is critical to weed control in the future and they are going to be under the radar more now than ever before.
This is a developing issue and we will provide additional information as it becomes available.