What’s next for dicamba-tolerant technology?

By Gil Gullickson

Had it proceeded as planned, dicamba-tolerant soybean technology would be receiving rave reviews in 2020. In its four years of commercial release, the four dicamba formulations labeled for dicamba-tolerant soybeans give excellent weed control. They include:

- XtendiMax With VaporGrip Technology (Bayer Crop Science)
- Engenia (BASF)
- FeXapan Herbicide Plus VaporGrip Technology (Corteva Agriscience)
- Tavium Plus VaporGrip Technology (Syngenta)

On the other hand, dicamba-tolerant technology has ended up in court. A federal jury last February awarded Bader Farms, a Campbell, Missouri, peach farm, $265 million as compensation for off-target dicamba damage. Bader Farms v. Monsanto was the first-filed dicamba crop-damage case in the United States. BASF and Bayer were the defendants in this case.

Dicamba damage cited in the case was initiated when Monsanto (which Bayer bought in 2018) launched dicamba-tolerant Xtend soybeans in 2016. However, dicamba formulations that Monsanto and BASF pegged as lower in volatility than existing dicamba formulations for the dicamba-tolerant soybeans were not launched until 2017. Applications of existing forms of dicamba were illegal that year.

“The law is clear that if you sell a product and if you foresee a use that is dangerous to the public, then you have an obligation to take steps and not sell it,” says Billy Randles, an attorney for Bader Farms. “They (Monsanto) clearly knew there were going to be off-label applications.”

The peach tree damage was not caused by dicamba, says Chris Hohn, an attorney who served as outside counsel for Bayer. The culprit, instead, was a fungal disease called Armillaria root rot, he says. 

The jury disagreed. It awarded $15 million as compensatory damages and $250 million in punitive damages.

“Compensatory damages focus on economic damages,” says Amy Alderfer, a Santa Monica, California, attorney. An example of compensatory damages is lost wages for a car accident victim who becomes totally disabled and can no longer work. Meanwhile, punitive damages are designed to punish, she says.

“Not every case warrants punitive damages,” she says. “In fact, most don’t. The argument is that the conduct was so egregious and malicious that the defendant needs to be punished for what was done.”

Material that surfaced during the Bader Farms trial provides a path for punitive damages to be awarded for off-target dicamba cases from 2017 and on, says Paul Lesko, an attorney for Peiffer Wolf Carr & Kane, a law firm that represents farmers in dicamba-damage lawsuits. This is a period in which legal dicamba herbicide applications have been made.

“We believe this will only get stronger in that regard as discovery continues,” says Lesko.

Both Bayer and BASF plan to appeal the verdict.

“We did not expect that outcome,” says Scott Kay, BASF vice president of U.S. crop protection. “We will appeal and move forward that way.”

There is legal precedence for punitive damages (a 2003 U.S. Supreme Court case Mutual Automobile Insurance Co. v. Campbell) that may bode favorably for Bayer and BASF, says Alderfer.

“It said a multiplier of more than 10 for punitive damages is going to be basically unconstitutional,” she says. “The Supreme Court said that a multiplier of four is also pushing the limits.”

However, Randles is confident of Bader Farms’ position in the appeal process. “I think we’re in pretty good shape,” he says.

STATE RESTRICTIONS

Dicamba formulations that are applied to dicamba-tolerant soybeans are also facing increased regulation in states like Indiana. Last year’s soggy spring caused many Indiana farmers to mix or delay preemergence residual chemistry. This led to increased dependency on postemergence chemistry, including dicamba on dicamba-tolerant soybeans.

“A side effect of this was the off-target dicamba complaints,” says Bill Johnson, Purdue University Extension weed specialist. “It was flying all over the place. So, we have made adjustments from a regulatory standpoint, as well.”

Indiana-specific restrictions for dicamba use on soybeans in 2020 include a June 20 application cutoff date, says Dave Scott, pesticide administrator of the Office of Indiana State Chemist (OISC).

In Illinois, off-target dicamba complaints set a record in 2019 at 728 – more than double the 2018 total of 330, says Jean Payne, executive director of the Illinois Fertilizer and Chemical Association. In response, the Illinois Department of Agriculture has enacted a June 20 dicamba cutoff date for 2020. It also is prohibiting application of dicamba if temperatures at application exceed 85°F, or if the National Weather Service’s forecasted high temperature for the nearest available location on application day exceeds 85°F.

Off-target dicamba complaints have been fewer in states that have enacted a June 20 cutoff date. For example, Minnesota – which had a June 20 cutoff date in place in 2019 – had 22 off-target dicamba complaints in 2019. Meanwhile, Indiana had 178 complaints with no state cutoff date in 2019, according to data compiled by the OISC.

Bayer officials have opposed state cutoff dates, saying the federal label is sufficient. The federal label prohibits over-the-top application of dicamba formulations designed for dicamba-tolerant soybeans 45 days after planting or after the R1 stage (beginning bloom), whichever comes first.

“It would be easier if we are uniform (on labels), but if states can justify them to the EPA, we (BASF) will not get in the way of that,” says Kay.

WHAT’S AHEAD

Bayer plans to move forward with its dicamba-tolerant technology. The court decision will have no impact on the commercial availability of the dicamba-tolerant system as it now stands, says Darren Wallis, a Bayer spokesperson.

“It will be broadly available for this spring,” he says.

At a briefing last February, company officials detailed Bayer’s plan to launch its XtendFlex herbicide-tolerant soybean package that tolerates glyphosate, glufosinate, and dicamba formulations that match its herbicide-tolerant soybeans this spring.

Dicamba tolerance will continue to be a strong base of Bayer’s future plans, say company officials. By 2030, Bayer aims to have a six-way soybean stack, including tolerance to:

- Glyphosate
- Dicamba
- Glufosinate
- An HPPD- inhibitor herbicide
- 2,4-D
- A PPO-inhibitor herbicide

BASF also plans to market Engenia in 2020 and beyond. BASF also has plans to move forward with other future technologies.

“Weed resistance is not a new topic,” says Kay. “We also have a lot of fields that have experienced resistance that need new technology and new trait platforms.”

BASF has a new herbicide site of action for soybeans that’s slated for the 2030s. It also has a new PPO-inhibitor (Group 14) technology that will control current PPO-resistant weeds, says Rick Van Genderen, BASF global lead for soybean and corn seed and trait strategy. Slated for the early 2030s, one of these herbicides will initially be launched for preplant and burndown situations. The trait technology that allows it to be used postemergence is slated for the early 2030s.

Just relying on one weed-management system won’t cut it in the future,” says Kay.

“With just one, history tells us it won’t be long before it’s worn out,” he says. “Let’s have multiple platforms so farmers can pick and choose, and rotate in order to avoid resistance problems.”