The Dicamba Papers: Key Documents and Analysis

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Dozens of farmers around the United States are suing the former Monsanto Co., purchased in 2018 by Bayer AG, and conglomerate BASF in an effort to hold the companies accountable for millions of acres of crop damage the farmers claim is due to widespread illegal use of the weed killing chemical dicamba, use  promoted by the companies.

The first case to go to trial pitted Missouri’s Bader Farms against the companies and resulted in a $265 million verdict against the companies. The jury awarded $15 million in compensatory damages and $250 million in punitive damages.

The case was filed in the U.S. District Court for the Eastern District of Missouri, Southeastern Division, Civil Docket #1:16-cv-00299-SNLJ. The owners of Bader Farms alleged the companies conspired to create an “ecological disaster” that would induce farmers to buy dicamba-tolerant seeds. Key documents from that case can be found below.

The EPA’s Office of the Inspector General (OIG) plans to investigate the agency’s approvals of new dicamba herbicides to determine whether the EPA adhered to federal requirements and “scientifically sound principles” when it registered the new dicamba herbicides.

FEDERAL ACTION

Separately, on June 3, 2020. the U.S. Court of Appeals for the Ninth Circuit said the Environmental Protection Agency had violated the law in approving dicamba herbicides make by Bayer, BASF and Corteva Agrisciences and overturned the agency’s approval of the popular dicamba-based herbicides made by the three chemical giants. The ruling made it illegal for farmers to continue to use the product.

But the EPA flouted the court ruling, issuing a notice on June 8 that said growers could continue to use the companies’ dicamba herbicides until July 31, despite the fact that the court specifically said in its order that it wanted no delay in vacating those approvals. The court cited damage done by dicamba use in past summers to millions of acres of crops, orchards and vegetable plots across U.S. farm country.

On June 11, 2020, the petitioners in the case filed an emergency motion seeking to enforce the court order and to hold the EPA in contempt. Several farm associations have joined with Corteva, Bayer and BASF in asking the court not to immediately enforce the ban. Documents are found below.

BACKGROUND: Dicamba has been used by farmers since the 1960s but with limits that took into account the chemical’s propensity to drift and volatilize- moving far from where it was sprayed. When Monsanto’s popular glyphosate weed killing products, such as Roundup, started losing effectiveness due to widespread weed resistance, Monsanto decided to launch a dicamba cropping system similar to its popular Roundup Ready system, which paired glyphosate-tolerant seeds with glyphosate herbicides. Farmers buying the new genetically engineered dicamba-tolerant seeds could more easily treat stubborn weeds by spraying  entire fields with dicamba, even during warm growing months, without harming their crops. Monsanto announced a collaboration with BASF in 2011. The companies said their new dicamba herbicides would be less volatile and less prone to drift than old formulations of dicamba.

The Environmental Protection Agency approved the use of Monsanto’s dicamba herbicide “XtendiMax” in 2016. BASF developed its own dicamba herbicide that it calls Engenia. Both XtendiMax and Engenia were first sold in the United States in 2017.

Monsanto started selling its dicamba-tolerant seeds in 2016, and a key claim by the plaintiffs is that selling the seeds before regulatory approval of the new dicamba herbicides encouraged farmers to spray fields with old, highly volatile dicamba formulations. The Bader lawsuit claims: “The cause of such destruction to Plaintiff Bader Farms’ crops is Defendant Monsanto’s willful and negligent release of a defective crop system – namely its genetically modified Roundup Ready 2 Xtend soybeans and Bollgard II Xtend cotton seeds (“Xtend crops”) – without an accompanying, EPA-approved dicamba herbicide.”

Farmers claim that the companies knew and expected that the new seeds would spur such widespread use of dicamba that drift would damage the fields of farmers who did not buy the genetically engineered dicamba-tolerant seeds. The farmers allege this was part of a scheme to expand sales of the genetically engineered dicamba-tolerant seeds. Many allege the new dicamba formulations sold by the companies also drift and cause crop damage just as the old versions have done.

For more information about dicamba, please see our dicamba fact sheet.

Grocery Manufacturers Association — key facts

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Summary


* GMA is the leading trade group for the junk food industry

* GMA hides list of its own corporate members

GMA was found guilty of money laundering

Opposed legislation to combat child slavery

* Out of touch: 93 percent of Americans support GMO labeling, but GMA opposes it

Opposes mandatory food labeling, supports voluntary regulation

Pure double-talk on ending childhood obesity

Supported use of rBST/rBGH in milk, an artificial hormone banned in EU/Canada

Funded fake “grassroots” anti-ethanol campaign

GMA Hides List of Own Corporate Member Companies

GMA no longer lists its member companies on its website. Here is the most recent publicly available list of the [GMA’s members. GMA website via archive.org, archived 12/23/13]

GMA’s President Makes Over $2 Million a Year

Since January 2009, Pamela Bailey has served as the President and CEO of the Grocery Manufacturers Association. As of April 2014, Bailey made $2.06 million per year. [Government Executive, 4/14] Bailey announced in 2018 she will retire after 10 years at the helm of GMA. [Progressive Grocer, 2/12/2018]

GMA Found Guilty of Money Laundering

In October 2013, Washington State Attorney General Bob Ferguson filed a lawsuit against the GMA for money laundering. The suit alleged that GMA “illegally collected and spent more than $7 million while shielding the identity of its contributors.” [Attorney General press release, 10/16/13]

In 2016, GMA was found guilty of money laundering and ordered to pay $18 million, which is believed to be the highest fine for campaign finance violations in the history of the United States. [Seattle PI, 11/2/2016]

GMA Revealed Donors Under Pressure, Showing More Than $1 Million Each from Pepsi, Nestle, and Coca-Cola

In October 2013, GMA released its list of funders under pressure, showing that Pepsi, Nestle, and Coca-Cola each gave more than $1 million.

“The Grocery Manufacturers Association on Friday revealed that PepsiCo, Nestle USA and Coca-Cola each gave hidden donations of more than $1 million to the campaign against a Washington initiative that would require the labeling of genetically engineered food. The association agreed to make public a long list of donors to its anti-labeling campaign after being sued this week by Washington Attorney General Bob Ferguson.” [The Oregonian, 10/18/13]

GMA Accused of Hiding Millions of Dollars More Than Originally Believed

In November 2013, Attorney General Ferguson amended the original complaint to increase from $7.2 million to $10.6 million the amount that GMA allegedly concealed. [Seattle Times, 11/20/13; Attorney General press release, 11/20/13]

Filed Counter-Suit Seeking to Invalidate Campaign Finance Laws that Required Disclosure of Donors

In January 2014, GMA responded to the Washington Attorney General’s lawsuit with a countersuit seeking to invalidate the state’s campaign finance laws regarding disclosure of donors.

“After trying to secretly influence the outcome of the vote on Initiative 522, the Grocery Manufacturers Association now is challenging the state’s campaign finance laws. On Jan. 3, the GMA responded to the Washington State Attorney General’s campaign disclosure lawsuit against the GMA with a counterclaim. The GMA also filed a separate civil rights complaint against Washington State Attorney General Bob Ferguson. The GMA claims Ferguson is unconstitutionally enforcing Washington’s laws and challenges the constitutionality of requiring the GMA to register as a political committee before requesting and receiving contributions to oppose Initiative 522, a measure would have required labeling of genetically engineered foods.” [Seattle Post-Intelligencer, 1/13/14]

GMA Claimed Law Requiring Disclosure of Donors was Unconstitutional

GMA’s countersuit claimed that being required to disclose its donors was unconstitutional.

“In its counterclaim and civil rights suit, the GMA claims the following are unconstitutional as they have been applied in this case: Washington’s law requiring the GMA to file a political committee before collecting funds from its members for specific political activity in Washington; Washington’s law requiring the GMA to disclose the organizations who contributed to its special political fund and how much they donated; and Washington’s law requiring the GMA to secure $10 in donations from 10 separate registered Washington voters as part of its political committee before donating to another political committee. [Washington State Office of the Attorney General press release, 1/13/14]

Judge Rejected Effort to Dismiss Lawsuit in June 2014

In June 2014, Thurston County Judge Christine Schiller rejected a motion from GMA to dismiss the money laundering charge it was facing.

A Thurston County judge on Friday rejected efforts by the Grocery Manufacturers Association to squelch a lawsuit in which state Attorney General Bob Ferguson accuses the Washington, D.C.-based lobby of laundering millions of dollars in last fall’s campaign. … Judge Christine Schaller rejected the association’s motion to dismiss the lawsuit. “Today’s ruling is an important step in our work to hold the Grocery Manufacturers Association accountable for the largest campaign finance concealment case in Washington history,” said Ferguson. [Seattle Post-Intelligencer, 6/13/14]

Attorney General Said Judge’s Ruling Meant Case Would Continue to Trial

Following Judge Schaller’s ruling, Attorney General Bob Ferguson said that the GMA case would continue to trial “on its merits.”

“[Judge Christina] Schaller rejected the motion to dismiss, ruling the state’s campaign finance laws requiring the formation of a political committee and associated disclosures were constitutionally applied in this case. The case will now move forward on its merits.” [Washington State Office of the Attorney General press release, 6/13/14]

Opposed Bill That Exposed Slave-like Child Labor in Cacao Plantations

According to the Spokane Spokesman-Review, in 2001 the GMA, along with the chocolate industry, lobbied against legislation in the U.S. Congress that would have exposed slave-like child labor practices on cacao plantations in Africa. [Spokane Spokesman-Review, 8/1/01]

The proposed legislation was a response to a Knight Ridder investigation that found that some boys as young as 11 are sold or tricked into slavery to harvest cocoa beans in Ivory Coast, a West African nation that supplies 43 percent of U.S. cocoa. The State Department estimated that as many as 15,000 child slaves work on Ivory Coast’s cocoa, cotton and coffee farms. [Spokane Spokesman-Review, 8/1/01, Congressional Research Service, 7/13/05]

GMA is Out of Touch: 93 Percent of Americans Support Labeling…

According to the New York Times in 2013, “Americans overwhelmingly support labeling foods that have been genetically modified or engineered, according to a New York Times poll conducted this year, with 93 percent of respondents saying that foods containing such ingredients should be identified.” [New York Times, 7/27/13]

… But GMA Opposes Mandatory Labeling Laws

In June 2014, GMA and three other food industry organizations challenged Vermont’s law requiring food labels to identify products with GMO ingredients.

“Today, the Grocery Manufacturers Association (GMA), along with the Snack Food Association, International Dairy Foods Association and the National Association of Manufacturers, filed a complaint in federal district court in Vermont challenging the state’s mandatory GMO labeling law. GMA issued the following statement in conjunction with the legal filing.” [GMA press release, 6/13/14]

Supported Federal Ban on State GMO Labeling Laws

In April 2014, the GMA advocated for a federal ban on state laws to require mandatory GMO labeling.

“The giants of the U.S. food industry who have spent millions fighting state-by-state efforts to mandate new labels for genetically modified organisms are taking a page from their opponents and pushing for a federal GMO law. But the Grocery Manufacturers Association, which represents such food and beverage leaders as ConAgra, PepsiCo and Kraft, isn’t exactly joining the anti-GMO movement. It’s advocating for an industry-friendly, law with a voluntary federal standard — a move that food activists see as a power grab by an industry that has tried to kill GMO labeling initiatives every step of the way.” [Politico, 1/7/14]

2014 Bill Introduced to Prevent States from Requiring GMO Labels

In April 2014, a bill was introduced in Congress that would ban states from enacting their own GMO labeling laws.

“A bill introduced Wednesday would put the federal government in charge of overseeing the labeling of foods with genetically modified ingredients, preventing states from enacting their own requirements to regulate the controversial ingredients. … But consumer groups vowed to fight the legislation, which they see as an attempt to undermine efforts to pass state ballot initiatives mandating labeling of most products with genetically modified ingredients.” [USA Today, 4/9/14]

GMA President Called Defeating Prop 37 “Single-Highest Priority”

In 2012, GMA President Pam Bailey said that defeating Prop 37 was the GMA’s highest priority for 2012.

“In a recent speech to the American Soybean Association (most soy grown in the U.S. is genetically modified), Grocery Manufacturers Association President Pamela Bailey said that defeating the initiative ‘is the single-highest priority for GMA this year.’” [Huffington Post, 7/30/12]

Supports Voluntary, Not Mandatory, Food Labeling

2014: GMA and Food Marketing Institute Launched $50 Million Voluntary Labeling Campaign

In March 2014, GMA and the Food Marketing Institute launched a $50 million marketing campaign to promote the industry’s voluntary “Facts Up Front” nutrition facts system.

“The food industry appears poised to one-up the Obama administration with the launch of a national media blitz to promote its own nutrition labels on the front of food packages. The Grocery Manufacturers Association and the Food Marketing Institute, which represent the biggest food companies and retailers, will roll out a coordinated marketing campaign, spending as much as $50 million, on Monday to promote their ‘Facts Up Front,’ the industry’s own voluntary program for providing nutrition information on the front of food and beverage packages, POLITICO has learned.” [Politico, 3/1/14]

GMA Pressed for Voluntary Federal GMO Labeling Standard

In 2014, the GMA, along with other food industry organizations, called for a voluntary federal genetically-modified-organism labeling standard.

“The giants of the U.S. food industry who have spent millions fighting state-by-state efforts to mandate new labels for genetically modified organisms are taking a page from their opponents and pushing for a federal GMO law. But the Grocery Manufacturers Association, which represents such food and beverage leaders as ConAgra, PepsiCo and Kraft, isn’t exactly joining the anti-GMO movement. It’s advocating for an industry-friendly, law with a voluntary federal standard — a move that food activists see as a power grab by an industry that has tried to kill GMO labeling initiatives every step of the way.” [Politico, 1/7/14]

GMA’s Double Talk on Ending Childhood Obesity

The Grocery Manufacturers Association has boasted of its “commitment to do its part to help reduce obesity in America – especially childhood obesity.” [GMA Press Release, 12/16/09]

… But Opposes Restrictions on Sale of Junk Food, Soda in Schools

According to Michele Simon’s book Appetite for Profit, “GMA is on record opposing virtually every state bill that would restrict the sale of junk food or soda in schools.” [Appetite for Profit, page 223]

 … And Worked to Defeat California School Nutrition Guidelines, Sending Bill to Defeat with Last-Minute Lobbying

In 2004, nutrition guidelines for California schools failed narrowly following last-minute lobbying from GMA.

“Just last month, California tried to set nutrition guidelines on foods sold outside the federal meal program. But thanks to last-minute lobbying by the Grocery Manufacturers of America (GMA), that bill failed by just five votes, despite having the support of 80 nonprofit organizations. Only five groups opposed the measure — all of whom profit from selling junk food to kids.” [Michele Simon, Pacific News Service, 9/3/04]

… And Opposed School Nutrition Guidelines in Other States

According to the book Appetite for Profit, GMA opposed school nutrition guidelines in other states, including Texas, Oregon, and Kentucky.

“A search for the word ‘schools’ on the GMA web site resulted in no fewer than 126 hits, most of which are either submitted testimony or a letter filed in opposition to a school-related nutrition policy. Here are just a few examples of document titles: GMA Letter in Opposition of Texas Food and Beverage Restrictions, GMA Letter in Opposition to Oregon School Restrictions Bills, GMA Requests Veto of Kentucky School Restrictions Bill, and GMA Letter in Opposition to California School Nutrition Bill.” [Appetite for Profit, Page 223]

… And Has Lobbyists Around the Country Aiming to Defeat Legislation

In addition to its federal lobbying (which spiked to $14 million in 2013), GMA has lobbyists around the country aiming to defeat legislation that would restrict the food industry. Below are just some of their state lobbyists. [Center for Responsive Politics, opensecrets.org, accessed 12/22/14; State sources linked below]

Lobbyist State
Louis Finkel California
Kelsey Johnson Illinois
7 lobbyists with Rifkin, Livingston, Levitan & Silver Maryland
Kelsey Johnson Minnesota
Capitol Group Inc. New York

GMA Sought to Weaken Enforcement of Labeling Rules

In December 2011, GMA asked the Food and Drug Administration to selectively enforce labeling rules regarding basic nutrition facts.

“You have requested that FDA exercise enforcement discretion with respect to certain aspects of its nutrition labeling regulations in order to facilitate implementation of the Nutrition Keys program, namely: [1] Use of the four Nutrition Keys Basic Icons (calories, saturated fat, sodium, and total sugars), alone or accompanied by up to two Nutrition Keys Optional Icons, without declaration of polyunsaturated fat and monounsaturated fat in the Nutrition Facts panel as required by 21 CFR 101.9(c)(2)(iii) and (iv). [2] Use of the four Nutrition Keys Basic Icons, unaccompanied by any Optional Icons, without the disclosure statement required by§ 101.13(h) when the nutrient content of the food exceeds specified levels of total fat, saturated fat, cholesterol, or sodium. [3] Use of the four Nutrition Keys Basic Icons, alone or accompanied by up to two Nutrition Keys Optional Icons, without disclosure of the level of total fat and cholesterol in immediate proximity to the saturated fat icon as required by § 101.62(c).” [FDA letter to GMA, 12/13/11]

Supported Use of Hormone Banned in Canada, EU to Boost Milk Production in Cows

In 1995, GMA said that the Food & Drug Administration had found that the synthetic hormone rBST was “completely safe.” [GMA press release, 4/25/95]

rBST/rBGH Banned in EU, Canada

rBST/rBGH is banned from dairy products in the European Union and Canada.

“Recombinant bovine growth hormone (rBGH) is a synthetic (man-made) hormone that is marketed to dairy farmers to increase milk production in cows. It has been used in the United States since it was approved by the Food and Drug Administration (FDA) in 1993, but its use is not permitted in the European Union, Canada, and some other countries.” [American Cancer Society website, cancer.org]

Co-Plaintiff in Vermont Lawsuit Regarding Labeling for rBST/rBGH

According to FindLaw.com, GMA was a co-plaintiff in IDFA vs. Amnestoy, a case regarding the labeling of dairy products produced from cows treated with rBST/rBGH. [FindLaw.com, accessed 12/17/14; United States Court of Appeals, International Dairy Foods Ass’n v. Amestoy, Case No. 876, Docket 95-7819, decided 8/8/96]

“‘Vermont’s mandatory labeling law flies in the face of FDA’s determination that rBST is completely safe and that mandatory labeling should not be required,’ stated John Cady, president of NFPA. ‘The law will likely convey to consumers a false and misleading impression concerning the safety and wholesomeness of milk from rBST-supplemented cows.’” [GMA press release, 4/25/95]

Opposed Labeling Dairy Produced with Growth Hormone

According to the St. Louis Post-Dispatch, in 1993-94, GMA opposed labels on dairy products derived from cows injected with Monsanto’s controversial Bovine Growth Hormone (rBGH). [St. Louis Post-Dispatch, 3/3/94]

GMA Opposed Ohio Labeling Rule that was Struck Down

According to FoodNavigator-USA, GMA and other food industry groups opposed the Ohio labeling rule that was struck down by the appeals court. [FoodNavigator-USA, 4/25/08]

The Ohio state rule in question banned statements such as “rbGH Free,” “rbST Free” and “artificial hormone free,” aimed at providing consumers with the information needed to make informed choices. Center for Food Safety, 9/30/10

Funded Fake “Grassroots” Anti-Ethanol Campaign

In May 2008, Sen. Chuck Grassley revealed that an anti-ethanol campaign that was supposedly “grassroots,” was in reality backed by a PR firm hired by GMA.

“According to two documents posted on Sen. Charles Grassley’s, R-IA, congressional website, the ‘grassroots’ anti-ethanol media blitz that’s hitched today’s climbing food prices to farmer-backed biofuels is as fake as astro-turf. Indeed, Grassley explained to Senate colleagues during his May 15 endorsement of the new farm bill, ‘It turns out that a $300,000, six-month retainer of a Beltway public relations firm is behind the smear campaign, hired by the Grocery Manufacturers Association.’” Aberdeen News, 5/30/08

GMA Sought to Take Advantage of Rising Food Prices

In its request for proposals, GMA said that it believed rising food prices provided the organization with an opportunity to hit ethanol.

“GMA has been leading an ‘aggressive’ public relations campaign for the past two months in an effort to roll back ethanol mandates that passed in last year’s energy bill. The association hired Glover Park Group to run a six-month campaign, according to GMA’s request for proposal and Glover Park’s response. ‘GMA has concluded that rising food prices … create a window to change perceptions about the benefits of bio-fuels and the mandate,’ reads the three-page RFP, a copy of which was obtained by Roll Call.” [Roll Call, 5/14/08]