If you are confused about the June 3 Ninth District Court of Appeals ruling that vacated the 2018 dicamba registration, you are not alone. On the surface the decision to disallow sales and usage of the controversial weed killer impacts all farmers using ENGENIA®, FEXAPAN® and XTENDIMAX® herbicides, and could not come at a more detrimental time for soybean farmers who have nearly completed putting the 2020 soybean crop in the ground. The products are also used in the cotton industry. 

However, some states such as Indiana and Tennessee say you can still use the products, but that might change at any time. In Illinois the product is completely off the table. Other states have not said one way or another how they are interpreting the ruling. 

“Producers need all the tools in their toolbox to produce the world’s food, fuel, and fiber, and USDA re-affirms its support for EPA’s science-based process for assessing and managing ecological risks, balanced against the agricultural and societal benefits of crop protection tools,”

U.S. Agriculture Secretary Sonny Perdue said just after the decision was handed down. “Farmers across America have spent hard earned money on previously allowed crop protection tools. I encourage the EPA to use any available flexibilities to allow the continued use of already purchased dicamba products, which are a critical tool for American farmers to combat weeds resistant to many other herbicides, in fields that are already planted. Unfortunately, the Ninth Circuit has chosen to eliminate one of those tools.”

In the ruling, the panel accused the U.S. EPA of “failing entirely” to acknowledge risks associated with dicamba. Bayer, already facing billions in liability lawsuits over weed killers such as Roundup, responded to the ruling by vowing to “work quickly” to minimize impacts on farmers during the current growing season. “Our top priority is making sure our customers have the support they need to have a successful season,” read a statement from Bayer, which recently completed a $63 billion takeover of Monsanto.

In Illinois, the nation’s top-producing soybean state, reaction to the decision was swift and severe. “Illinois farmers have always been advocates for the safe use of new technology. They have proven to be conscientious users of the product who have taken precautions and completed the required education needed to use dicamba. We stand with our fellow soybean states in advocating for our soybean farmers during this time and getting information out in an appropriate fashion,” stated the Illinois Soybean Association (ISA).

The ruling to vacate set off “a flurry of activity” at the Illinois Farm Bureau, according to IFB executive director of governmental affairs Mark Gebhards. “We’ve had discussions today ranging from the department of agriculture to the registrants that are involved with the product, to the U.S. EPA Region 5 office and a number of our congressional offices. Obviously, I have heard from a lot of farmers who are very concerned about what this means and what they can or cannot do,” Gebhards said on the IFB’s RFD Radio broadcast.

‘We are trying to figure out our options as we go forward. They are limited; I will say that. There are a lot of legal constraints around this ruling, the legal interpretations of what can or cannot be done is what they are working through. The ruling, as we read it, is effective immediately, and the product is not available to be sold or used in any states,” Gebhards added.

However, the office of the Indiana State Chemist put out the following statement, “If you are reading this, you are probably already aware that on June 3, 2020 the United States Court of Appeals for the Ninth Circuit issued an opinion vacating the federal registrations for the dicamba herbicides Engenia (EPA Reg. No. 7969-345), FeXapan (EPA Reg. No. 352-913), and Xtendimax (EPA Reg. No. 524-617). The federal registration for Tavium (EPA Reg. No. 10-1623) is NOT impacted by this opinion.

“So regulatory compliance questions already asked of OISC include: 1) Can these three products still be sold and distributed in Indiana? 2) Can these three products still be used in Indiana? The following status and guidance is being provided for Indiana dealers, distributors, and users/applicators. Because this guidance can change significantly on a daily basis, you are encouraged to visit this site frequently. 

“OISC has contacted U.S. EPA for federal guidance, but at this time has received none. This could change at any time.

“These three products currently have state registrations with OISC. The Court’s opinion did not address state registrations for these products. Indiana pesticide law does not currently require federal registration as a condition of state registration. OISC has not initiated any suspension or cancellation orders for these products at this point. Therefore, the state registrations are still valid until any necessary suspension or cancellation process can be taken.

“Until further notice, under state pesticide law, these products can continue to be distributed and used in Indiana.”

The notice on the Tennessee Department of Agriculture’s website was short, “The Tennessee Department of Agriculture is aware of a Ninth Circuit United States Court of Appeals decision vacating multiple labels of dicamba products issued by the United States Environmental Protection Agency. The Department is awaiting direction for whether and how those registered labels are affected in Tennessee. Absent further direction from EPA, the Department expects to enforce label requirements as the products are registered in this state.”    

Farmers who have dicamba products in storage cannot use them and should watch for information from the chemical companies and retailers on how the product may be returned, advised Jean Payne, executive director of the Illinois Fertilizer and Chemical Association. “Retailers cannot apply or sell these products, distributors in Illinois cannot ship them and Bayer, BASF and Corteva have also ceased shipping these products to any state,” she said, adding that one dicamba product, not included in the court ruling, remains registered. “It was registered in 2019 and that registration was not subject to the re-registration review that the Court determined USEPA did not do correctly. That product is Tavium by Syngenta. It is a premix dicamba herbicide and is available for use in Illinois until June 20, the date of the cut-off for application.”

Late Friday afternoon, June 5, the Illinois Department of Agriculture issued the following statement regarding the dicamba ban: “While the Department has the authority to regulate the sale and use of pesticides within the State, it cannot permit any sale or use without a valid FIFRA registration. The Department acknowledges and is sympathetic to the challenges that the Court’s decision will pose to the industry. The Department has not yet received any guidance from the USEPA, but we will continue to monitor this situation closely. As new information becomes available, the Department will provide updates on its website.

The court’s canceling of the dicamba registration is easily understood and somewhat overdue, according to some in agriculture. “When we cannot regulate ourselves to limit our farming systems to not damage non-target plants such as rural homeowner landscapes and natural wooded areas, we can expect others to do it for us and we have no one to blame for our situation than ourselves. The long reach of this ruling cannot be accurately predicted and will eventually go far beyond just the registration of dicamba,” said Steve Smith, chairman, Save Our Crops Coalition, in a press release.

Dr. Aaron Hager, crop pest specialist at the University of Illinois, posted a bulletin listing alternatives for growers who cannot apply dicamba to soybean. That bulletin may be accessed at www.bulletin.ipm.illinois.edu/?p=5061.

Farmers should talk with their ag retailers about available options for their Xtend fields, Payne advised.