Monsanto, BASF Hit with Class Actions Over Crop Damage Allegedly Linked to Dicamba Herbicides

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A proposed class action claims Monsanto Company, BASF SE, and BASF Corporation developed and sold a dicamba-based crop system that they were fully aware would prove “ruinous” to non-dicamba-resistant crops.

According to the lawsuit, the defendants released highly volatile dicamba onto the market in order to pressure farmers into purchasing dicamba-resistant seeds for their own protection, an apparent “scheme of ecological disaster” through which the companies raked in “massive profits.” From the complaint:

“Not only did Defendants release their dangerous system onto the market, creating high risk of harm, but everything they did and failed to do increased that risk, all but ensuring damage to non-dicamba resistant plants and crops.”

The lawsuit says that Monsanto’s development of seeds genetically modified to be resistant to glyphosate, the active ingredient in its Roundup herbicide, began “a dangerous cycle” that triggered the development of herbicide-tolerant traits in weeds. To address the growing problem of weeds’ resistance to Roundup, Monsanto partnered with BASF to develop a new crop system that was resistant to BASF’s dicamba-based herbicide products, the case states.

According to the suit, dicamba is a “broad-spectrum systemic herbicide” known to be especially volatile and prone to drift, meaning it has a high propensity to evaporate and drift through the air onto non-target plants and crops. Before the development of the defendants’ dicamba-resistant crop system, dicamba was applied only during pre-planting or post-harvest burndown in order to avoid damaging nearby crops, the case says. The defendants’ Roundup Ready Xtend Crop System, however, allowed dicamba to be applied over the top of growing plants during the summer months when it was more susceptible to drift, the case says.

The lawsuit claims Monsanto and BASF “aggressively advertised” the Xtend system without disclosing that it posed an “unreasonable risk of harm” to non-resistant plants nearby and would force other farmers to buy the companies’ products during the next growing season as a precaution. 

Monsanto, according to the suit, advertised to farmers that the new Xtend system would “maximize crop yield potential” and was developed to use application methods “proven to increase on target [sic] applications.” In truth, the case alleges, the defendants’ advertised application methods cannot prevent dicamba from volatilizing and drifting to non-resistant fields, and the instructions for use were neither understandable nor routine, as implied by the companies.

The case further contends that Monsanto and BASF failed to provide adequate education, training, and stewardship tools to allow farmers to minimize the risk of dicamba damage.

“Users of the Xtend Crop System do not appreciate and would not expect its risks, including the likelihood and dynamics of volatilization, or how little dicamba it takes to damage susceptible non-resistant plants and crops,” the lawsuit reads.

Further, given every purchaser of dicamba-resistant seeds must enter into a technology licensing agreement with Monsanto, the company could have required dicamba application training as a condition of purchasing the seeds, the suit says. Nevertheless, Monsanto chose not to do so, per the complaint.

Damage caused by the defendants’ crop system was further exacerbated by the fact that Monsanto sold Xtend cotton seeds before the promised “low” volatility dicamba herbicide was approved by the Environmental Protection Agency for in-crop application, the suit continues. While the company’s public stance was that farmers should not spray their Xtend cotton crops with older, more volatile versions of dicamba, Monsanto representatives allegedly encouraged “just the opposite,” advising farmers to apply dicamba over the top of their cotton during the 2015 growing season.

The case alleges that Monsanto and BASF were not only aware that farmers would use older herbicides to spray their crops, but encouraged such through advertising and the premature release of Xtend cotton, the sole purpose of which was to allow for in-crop herbicide application.

“By releasing Xtend cotton seed in 2015, claiming greater yields, preying on farmers’ worry over glyphosate-resistant weeds, and extolling dicamba, Monsanto, as well as BASF, were enticing farmers to not only purchase Xtend seed but to use older versions of dicamba,” the suit alleges.

Per the lawsuit, defendants’ greater purpose in releasing Xtend cotton was to increase demand for both resistant seeds and the corresponding herbicide. Monsanto, the case claims, took no action against farmers who sprayed older versions of dicamba despite possessing the power to revoke their licenses to grow dicamba-resistant seeds.

In fact, the suit says, Monsanto released dicamba-resistant soybeans in 2016 despite the damage caused by in-crop dicamba application during the prior year, assuring farmers that approval of the “low” volatility dicamba herbicide was “imminent.” The damage to non-resistant crops during the 2016 growing season was “on a much larger scale” than the previous year due to the availability of two resistant seeds, the case alleges.

According to the lawsuit, the full Xtend crop system, including the in-crop herbicides, became available for the first time in 2017. Monsanto’s XtendiMax and BASF’s Engenia products, as well as DePont’s FeXapan product (a form of XtendiMax with VaporGrip Technology that the company sold as part of an agreement with Monsanto), were intended to increase sales of dicamba-resistant seeds and herbicides, the case relays.

All the while, the defendants falsely represented that their dicamba-resistant seeds were high yield and that the herbicide products were low volatility despite knowing that the products would cause extensive damage to neighboring non-resistant crops, according to the case.

“Defendants made, and continue to make, such representations and omissions when they knew, and intended, that dicamba would be sprayed extensively and multiple times, in hot summer months, in areas of proximity to susceptible non-resistant plants and crops,” the suit states.

Moreover, the labels on the defendants’ products failed to provide adequate warnings and directions for use, the case says. According to the suit, even if farmers complied with the labels’ instructions, they would be unable to prevent unreasonably adverse effects on the environment.

The lawsuit claims the damage caused by the defendants’ dicamba-based crop system was foreseeable by the companies and resulted in thousands of complaints in 2017. Nevertheless, the companies have allegedly continued “their campaign of false and misleading statements” regarding the safety and efficacy of the Xtend crop system.

In October 2017, the EPA announced that it was reclassifying in-crop dicamba as a restricted-use herbicide, the suit says. The case argues, however, that although dicamba labels were revised, they are still insufficient and “exceedingly difficult to follow.” It has been estimated that approximately four percent of soybean fields were damaged by off-target movement of dicamba in 2018 despite label changes, the complaint claims. 

In all, the defendants have forced farmers to either buy their dicamba-resistant seeds or risk their crops being damaged by dicamba, according to the plaintiffs.

“Defendants’ attempt to force everyone into a dicamba-based system is not reasonable or in the public interest,” the complaint scathes.

The lawsuit, along with at least one other, comes on the heels of an April 28 letter sent to the EPA by the Association of American Pesticide Control Officials (AAPCO) in which the organization requested the agency consider banning in-crop use of four dicamba herbicides, including those at the center of this case.

The two complaints can be read below.