Court frowns on Bayer’s proposed Roundup class-action settlement

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A federal judge on Monday had harsh words for Bayer AG’s plan to delay potential future Roundup cancer lawsuits and block jury trials, criticizing the highly unusual proposal crafted by Bayer and a small group of plaintiffs’ attorneys as potentially unconstitutional.

The “Court is skeptical of the propriety and fairness of the proposed settlement, and is tentatively inclined to deny the motion,” reads the preliminary order issued by Judge Vince Chhabria of the U.S. District Court for the Northern District of California. The judge’s position appears to be a sharp blow to Bayer and the company’s efforts to resolve a legacy of litigation attached to Monsanto, which Bayer bought two years ago.

More than 100,000 people in the United States claim exposure to Monsanto’s glyphosate-based Roundup herbicides caused them to develop non-Hodgkin lymphoma (NHL) and that Monsanto long knew about and covered up the cancer risks.

Three jury trials have been held in the last two years and Monsanto lost all three with juries awarding more than $2 billion in damages. All the cases are now on appeal and Bayer has been scrambling to avoid future jury trials.

Last month Bayer said it had reached agreements to settle the majority of lawsuits currently filed and had crafted a plan for handling cases that likely would be filed in the future. To handle the current litigation Bayer said it will pay up to $9.6 billion to resolve roughly 75 percent of the current claims and will continue working to settle the rest.

In the plan for handling potential future cases, Bayer said it was working with a small group of plaintiffs’  attorneys who stand to make more than $150 million in fees in exchange for agreeing to a four-year “standstill” in filing cases. This plan would apply to people who may be diagnosed in the future with NHL they believe is due to Roundup exposure. In contrast to Monsanto’s settlement of the pending cases against it, settlement of this new “futures” class action requires court approval.

In addition to delaying more trials, the deal calls for the establishment of a five-member “science panel” that would take any future findings on cancer claims out of the hands of  juries. Instead, a “Class Science Panel” would be established to determine whether Roundup can cause non-Hodgkin lymphoma, and if so, at what minimum exposure levels.  Bayer would get to appoint two of the five panel members. If the panel determined there was no causal connection between Roundup and non-Hodgkin lymphoma then the class members would be barred from future such claims.

Several members of the lead law firms who won the three Roundup cancer trials oppose the proposed class action settlement plan, saying it would deprive future plaintiffs of their rights while enriching a handful of lawyers who have not previously been at the forefront of the Roundup litigation.

The plan requires the approval of Judge Chhabria, but the order issued Monday indicated he does not plan to grant approval.

“In an area where the science may be evolving, how could it be appropriate to lock in a
decision from a panel of scientists for all future cases?” the judge asked in his order.

The judge said he will hold a hearing on July 24 on the motion for preliminary approval of the class action settlement. “Given the Court’s current skepticism, it could be contrary to everyone’s interest to delay the hearing on preliminary approval,” he wrote in his order.

Below is an excerpt of the judge’s order:

U.S. regulators relied for years on flawed pesticide data provided by Dow Chemical

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For years, U.S. regulators relied on falsified data provided by Dow Chemical to allow unsafe levels of the chemical chlorpyrifos into American homes, according to a new analysis from University of Washington researchers.

The analysis reexamines work from the 1970s sponsored by Dow and submitted to the Environmental Protection Agency (EPA) to guide the agency in establishing what scientists refer to as a “no-observed-adverse-effect-level” or NOAEL. Such thresholds are used to determine what types of use and at what level a chemical exposure can be allowed and still be considered “safe.”

According to the new analysis, published online July 3 in the journal Environmental International, the inaccurate findings were the result of a chlorpyrifos dosing study conducted by researcher Frederick Coulston and colleagues from the Albany Medical College in the early 1970s for Dow.

The authors of the new paper reexamining that prior work are Lianne Sheppard, Seth McGrew and Richard Fenske of the Department of Environmental and Occupational Health Sciences, School of Public Health at the University of Washington.

While the study was authored by the Coulston group, the analysis was completed by a Dow statistician and concluded that 0.03 mg/kg-day was the chronic NOAEL level for chlorpyrifos in humans. But the new analysis by the University of Washington researchers found that wildly overstated the margin of safety. Had the data been properly analyzed a lower NOAEL of 0.014 mg/kg-day would have been found, they said.

The Coulston study did not undergo peer review but still was used by the EPA for risk assessments throughout much of the 1980′s and 1990′s, the University of Washington researchers reported.

The researchers concluded: “During that period, EPA allowed chlorpyrifos to be registered for multiple residential uses that were later cancelled to reduce potential health impacts to children and infants. Had appropriate analyses been employed in the evaluation of this study, it is likely that many of those registered uses of chlorpyrifos would not have been authorized by EPA. This work demonstrates that reliance by pesticide regulators on research results that have not been properly peer-reviewed may needlessly endanger the public.”

Widely used

Commonly known as the active ingredient in the brand name Lorsban, chlorpyrifos insecticides were introduced by Dow Chemical in 1965 and have been used widely in agricultural settings. The largest agricultural market for chlorpyrifos is corn but the pesticide is also used by farmers growing soybeans, fruit and nut trees, Brussels sprouts, cranberries, and cauliflower, as well as other row crops. Residues of the chemical are commonly found in food. Non-agricultural uses include golf courses, turf, green houses, and utilities.

Despite the science promoted by Dow, independent scientific research has shown mounting evidence of the dangers of chlorpyrifos, particularly to young children. Scientists have found that prenatal exposures to chlorpyrifos are associated with lower birth weight, reduced IQ, the loss of working memory, attention disorders, and delayed motor development.

The American Academy for Pediatrics, which represents more than 66,000 pediatricians and pediatric surgeons, has warned that continued use of the chemical puts developing fetuses, infants, children and pregnant women at great risk.

Chlorpyrifos is so dangerous that the European Food Safety Authority has stated that there is no safe exposure level.

The EPA reached an agreement with Dow in 2000 to phase out all residential uses of the chemical because of research showing the chemical is dangerous to the developing brains of babies and young children. In 2012, chlorpyrifos was banned from use around schools.

In February 2020, after pressure from consumer, medical, scientific groups and in face of growing calls for bans around the world, Corteva AgriScience, a successor corporation to a merger of Dow and DuPont, said it would phase out production of chlorpyrifos. The chemical, however, remains legal for other companies to make and sell.

Human subjects

The study that is the subject of the new paper by the University of Washington researchers was overseen in 1971 by the Albany Medical College’s Institute of Experimental Pathology and Toxicology. The study included 16 healthy adult male inmates from a pool of volunteers at Clinton Correctional Facility, a maximum-security prison in Dannemora, New York.

The volunteers were randomized into four experimental groups, including one control group, whose members received a daily placebo. The members of the three other groups received daily chlorpyrifos treatments at three different doses.  The study took place over 63 days.

The new analysis found several problems with the study, including the omission of eight valid baseline measurements for one of the three treatment groups.

“Such an omission of valid data without justification is a form of data falsification that violates all standard codes of ethical research practice and is classified as outright research misconduct,” the University of Washington researchers concluded.

The researchers said that chlorpyrifos “passed through the regulatory process without much debate,” even though there was “growing evidence that it might pose a health hazard in residential environments.”

“The Coulston Study misled regulators by omitting valid data,” and “may have adversely impacted public health” for several years, the University of Washington paper concludes.

U.S. regulators relied for years on flawed pesticide data provided by Dow Chemical

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For years, U.S. regulators relied on falsified data provided by Dow Chemical to allow unsafe levels of the chemical chlorpyrifos into American homes, according to a new analysis from University of Washington researchers.

The analysis reexamines work from the 1970s sponsored by Dow and submitted to the Environmental Protection Agency (EPA) to guide the agency in establishing what scientists refer to as a “no-observed-adverse-effect-level” or NOAEL. Such thresholds are used to determine what types of use and at what level a chemical exposure can be allowed and still be considered “safe.”

According to the new analysis, published online July 3 in the journal Environmental International, the inaccurate findings were the result of a chlorpyrifos dosing study conducted by researcher Frederick Coulston and colleagues from the Albany Medical College in the early 1970s for Dow.

The authors of the new paper reexamining that prior work are Lianne Sheppard, Seth McGrew and Richard Fenske of the Department of Environmental and Occupational Health Sciences, School of Public Health at the University of Washington.

While the study was authored by the Coulston group, the analysis was completed by a Dow statistician and concluded that 0.03 mg/kg-day was the chronic NOAEL level for chlorpyrifos in humans. But the new analysis by the University of Washington researchers found that wildly overstated the margin of safety. Had the data been properly analyzed a lower NOAEL of 0.014 mg/kg-day would have been found, they said.

The Coulston study did not undergo peer review but still was used by the EPA for risk assessments throughout much of the 1980′s and 1990′s, the University of Washington researchers reported.

The researchers concluded: “During that period, EPA allowed chlorpyrifos to be registered for multiple residential uses that were later cancelled to reduce potential health impacts to children and infants. Had appropriate analyses been employed in the evaluation of this study, it is likely that many of those registered uses of chlorpyrifos would not have been authorized by EPA. This work demonstrates that reliance by pesticide regulators on research results that have not been properly peer-reviewed may needlessly endanger the public.”

Widely used

Commonly known as the active ingredient in the brand name Lorsban, chlorpyrifos insecticides were introduced by Dow Chemical in 1965 and have been used widely in agricultural settings. The largest agricultural market for chlorpyrifos is corn but the pesticide is also used by farmers growing soybeans, fruit and nut trees, Brussels sprouts, cranberries, and cauliflower, as well as other row crops. Residues of the chemical are commonly found in food. Non-agricultural uses include golf courses, turf, green houses, and utilities.

Despite the science promoted by Dow, independent scientific research has shown mounting evidence of the dangers of chlorpyrifos, particularly to young children. Scientists have found that prenatal exposures to chlorpyrifos are associated with lower birth weight, reduced IQ, the loss of working memory, attention disorders, and delayed motor development.

The American Academy for Pediatrics, which represents more than 66,000 pediatricians and pediatric surgeons, has warned that continued use of the chemical puts developing fetuses, infants, children and pregnant women at great risk.

Chlorpyrifos is so dangerous that the European Food Safety Authority has stated that there is no safe exposure level.

The EPA reached an agreement with Dow in 2000 to phase out all residential uses of the chemical because of research showing the chemical is dangerous to the developing brains of babies and young children. In 2012, chlorpyrifos was banned from use around schools.

In February 2020, after pressure from consumer, medical, scientific groups and in face of growing calls for bans around the world, Corteva AgriScience, a successor corporation to a merger of Dow and DuPont, said it would phase out production of chlorpyrifos. The chemical, however, remains legal for other companies to make and sell.

Human subjects

The study that is the subject of the new paper by the University of Washington researchers was overseen in 1971 by the Albany Medical College’s Institute of Experimental Pathology and Toxicology. The study included 16 healthy adult male inmates from a pool of volunteers at Clinton Correctional Facility, a maximum-security prison in Dannemora, New York.

The volunteers were randomized into four experimental groups, including one control group, whose members received a daily placebo. The members of the three other groups received daily chlorpyrifos treatments at three different doses.  The study took place over 63 days.

The new analysis found several problems with the study, including the omission of eight valid baseline measurements for one of the three treatment groups.

“Such an omission of valid data without justification is a form of data falsification that violates all standard codes of ethical research practice and is classified as outright research misconduct,” the University of Washington researchers concluded.

The researchers said that chlorpyrifos “passed through the regulatory process without much debate,” even though there was “growing evidence that it might pose a health hazard in residential environments.”

“The Coulston Study misled regulators by omitting valid data,” and “may have adversely impacted public health” for several years, the University of Washington paper concludes.

Coronavirus Food News Tracker: Best articles on the pandemic and our food system

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Covid-19 is exposing serious problems with our food system. In this post, U.S. Right to Know is tracking important food news news related to the coronavirus pandemic. To receive weekly updates and breaking news from the USRTK investigations, please sign up for our newsletter.

Topics (drop links)
Most Recent Articles 
Obesity and Coronavirus
Eating Ultra-processed Food Increases Likelihood of Dying from Coronavirus
Inequalities In Our Food System
Risks Facing Farmworkers and Food Workers
Food Supply and Security  
Toxic Chemicals and Coronavirus
Role of Factory Farming and Agriculture in Pandemics Like Covid-19
Food System Analysis 
Food Safety
Junk Food Resurgence 

Most recent articles

Obesity and Coronavirus

Eating Ultra-processed Food Increases Likelihood of Dying from Coronavirus

Inequalities In Our Food System 

Risks Facing Farmworkers and Food Workers

Food Supply and Security  

Toxic Chemicals and Coronavirus

Role of Factory Farming and Agriculture in Pandemics Like Covid-19

Food System Analysis

Food Safety

Junk Food Resurgence

Please send us stories you think are important to include. You can email them to stacy@usrtk.org.
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Challenge eyed to class action plan for Bayer Roundup settlement

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A plan to delay any new Roundup cancer claims for years and shift the key question of whether or not the weed killer causes cancer from a jury to a hand-picked panel of scientists faces potential opposition from some of the plaintiffs’ attorneys who initiated and led the mass tort claims against Roundup maker Monsanto, sources close to the litigation said.

Several members of the lead law firms who won three out of three trials pitting cancer patients against Monsanto are considering challenging the terms of a proposed “class action” settlement negotiated between Monsanto owner Bayer AG and a small team of  lawyers who have not previously been at the forefront of the Roundup litigation, the sources said.

The class action settlement proposal is an element of the sweeping $10 billion Roundup litigation settlement Bayer announced June 24.

In each of the trials held to date, juries found that the weight of scientific evidence proved that Roundup exposure caused the plaintiffs to develop non-Hodgkin lymphoma (NHL) and that Monsanto covered up the risks. But under the proposal that question would go to a five-member “science panel,” not a jury.

“It’s basically depriving a plaintiff of their constitutional right to a jury trial,” said one source close to the litigation.

The proposed class settlement would apply to anyone exposed to Roundup who had not filed a lawsuit or retained a lawyer as of June 24, 2020, regardless of whether or not that person already had been diagnosed with cancer they believe was due to Roundup exposure.

The plan was put together by Bayer and the law firms of Lieff Cabraser Heimann & Bernstein; Audet & Partners; The Dugan Law Firm; and lawyer Samuel Issacharoff, Reiss Professor of Constitutional Law at New York University School of Law.

The agreement was reached after nearly one year of “unrelenting efforts” of negotiations, lawyer Elizabeth Cabraser said in a declaration to the court supporting the proposed class settlement.

It would set a “standstill period” in which plaintiffs in the class cannot file new litigation related to Roundup. And it calls for class members to release “any claims against Monsanto for punitive damages and for medical monitoring related to Roundup exposure and NHL.”

Notably, the plan states that rather than go forward with another jury trial, a panel of scientists will first be set up to determine the “right answer” to “the threshold question” of whether or not there is a causal link between Roundup and NHL.

The plan calls for Bayer to pay up to $150 million for the fees and costs of the attorneys’ involved and “class representative service awards” up to $25,000 to each or a total of $100,000.

Overall, Bayer said it would set aside $1.25 billion for the arrangement. The money would be used to compensate class members diagnosed with NHL for the “effects of the delay” in litigation, and to fund research into the diagnosis and treatment of NHL, among other things.

A motion seeking preliminary approval of the class settlement was filed Wednesday with the U.S. District Court for the Northern District of California to be handled by Judge Vince Chhabria. Chhabria has been overseeing numerous Roundup lawsuits that have been bundled together as multidistrict litigation. In shepherding a large number of the lawsuits already filed, Chhabria oversaw one of the Roundup trials, as well as what is known as a “Daubert” hearing, in which he heard days of scientific testimony from both sides and then decided there was sufficient scientific evidence of causation for the litigation to proceed.

The class settlement proposal was negotiated separately from the main settlement made with the lead law firms.

In the main settlement, Bayer agreed to provide $8.8 billion to $9.6 billion to resolve roughly 75 percent of the roughly 125,000 filed and unfiled claims brought by plaintiffs who blame exposure to Monsanto’s Roundup for their development of non-Hodgkin lymphoma.  Lawyers representing more than 20,000 additional plaintiffs say they have not agreed to settle with Bayer and those lawsuits are expected to continue to work their way through the court system.

Even though Monsanto lost each of the three trials held to date, Bayer maintain the jury decisions were flawed and based on emotion and not sound science.

Science Panel Selection

Bayer and the lawyers for the proposed class would work together to select the five scientists to sit on what would be a “neutral, independent” panel, according to the plan.  If they cannot agree on the make-up of the panel then each side will choose two members and those four members will choose the fifth.

No scientist who acted as an expert in the federal multidistrict Roundup litigation will be allowed to be on the panel. Notably, neither will anyone who “communicated with any expert” in the litigation about the subject matter.

The panel would have four years to review scientific evidence but can petition for an extension of time if necessary. The determination would be binding on both sides, the plan states. If the panel determines there is a causal link between Roundup and NHL, plaintiffs can go forward to seek trials of their individual claims.

“Knowledge is power and this Settlement empowers class members to hold Monsanto accountable for their injuries if and when the Science Panel determines that general causation is satisfied,” the plan states.

The filing with the federal court requests a preliminary approval hearing within 30 days.

Bayer settles U.S. Roundup, dicamba and PCB litigation for more than $10 billion

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In an expensive clean-up of Monsanto litigation messes, Bayer AG said Wednesday that it will pay out more than $10 billion to settle tens of thousands of U.S. claims brought against Monsanto over its Roundup herbicide, as well as $400 million to resolve lawsuits over Monsanto’s dicamba herbicide and $650 million for PCB pollution claims.

The resolutions come two years after Bayer bought Monsanto for $63 billion and almost immediately saw share prices plummet due to the Roundup liability.

Bayer announced that it will pay $10.1 billion to $10.9 billion total to resolve roughly 75 percent of the claims by an estimated 125,000 people who allege exposure to Monsanto’s Roundup weed killers caused them to develop non-Hodgkin lymphoma. The deal includes plaintiffs who have retained attorneys with the intent to sue but whose cases have not yet been filed, Bayer said.  Within that total, a payment of $8.8 billion to $9.6 billion will resolve the current litigation and $1.25 billion is being set aside to support potential future litigation, the company said.

The plaintiffs included in the settlement are those signed with the law firms that have been leading the Roundup federal multi-district litigation (MDL) and include The Miller Firm of Virginia, the Baum Hedlund Aristei & Goldman firm of Los Angeles and the Andrus Wagstaff firm of Denver, Colorado.

“After years of hard fought litigation and a year of intense mediation I am glad to see our clients will now be compensated,” said Mike Miller, of the Miller law firm.

The Miller firm and the Baum Hedlund firm worked together to win the first case to go to trial, that of California groundskeeper Anthony “Lee” Johnson. Andrus Wagstaff won the second trial and The Miller Firm won the third case to go to trial. In all, the three trials resulted in jury verdicts totaling more than $2.3 billion, though the trial judges in each case lowered the verdicts.

The juries in all three trials found that Monsanto’s glyphosate herbicides, such as Roundup, caused non-Hodgkin lymphoma and that Monsanto covered up the risks and failed to warns users.

Each of the three trial verdicts are going through the appeals process now and Bayer said the plaintiffs in those cases are not included in the settlement.

Bayer said future Roundup claims will be part of a class agreement subject to approval by Judge Vince Chhabria of the U.S. District Court for the Northern District of California, who ordered the year-long mediation process that led to the settlement.

The agreement would take any future findings on cancer claims out of the hands of  juries, Bayer said. Instead, there will be the creation of an independent “Class Science Panel.” The Class Science Panel will determine whether Roundup can cause non-Hodgkin lymphoma, and if so, at what minimum exposure levels.  Both the plaintiffs in the class action and Bayer will be bound by the Class Science Panel’s determination.  If the Class Science Panel determines there is no causal connection between Roundup and non-Hodgkin lymphoma then the class members will be barred from claiming otherwise in any future litigation against Bayer.

Bayer said the Class Science Panel’s determination is expected to take several years and class members will not be permitted to proceed with Roundup claims prior to that determination. They also cannot seek punitive damages, Bayer said.

“The Roundup™ agreements are designed as a constructive and reasonable resolution to a unique litigation,” said Kenneth R. Feinberg, the court-appointed mediator for the settlement talks.

Even as they announced the settlement, Bayer officials continued to deny Monsanto’s glyphosate herbicides cause cancer.

“The extensive body of science indicates that Roundup does not cause cancer, and therefore, is not responsible for the illnesses alleged in this litigation,” Bayer CEO Werner Baumann said in a statement.

Dicamba Deal

Bayer also announced a mass tort agreement to settle U.S. dicamba drift litigation, which involves claims from farmers that use of dicamba herbicides developed by Monsanto and BASF to be sprayed over dicamba-tolerant crops developed by Monsanto caused widespread crop loss and injury.

In a trial earlier this year, Monsanto was ordered to pay $265 million to a Missouri peach farmer for dicamba drift damage to his orchard.

More than 100 other farmers have made similar legal claims. Bayer said it will pay up to a total of $400 million to resolve the multi-district dicamba litigation that is pending in the U.S. District Court for the Eastern District of Missouri, with claims for the 2015-2020 crop years. Claimants will be required to provide proof of damage to crop yields and evidence that it was due to dicamba in order to collect. The company expects a contribution from its co-defendant, BASF, towards this settlement.

The settlement will provide “much-needed resources for farmers” who have suffered crop losses due to drifting dicamba herbicides, said lawyer Joseph Peiffer of the Peiffer Wolf law firm, which represents farmers with dicamba claims.

“The settlement announced today is an important step to making things right for the farmers who just want to be able to put food on the table of America and the world,” Peiffer said.

Earlier this month a federal court ruled that the Environmental Protection Agency had violated the law when it approved dicamba herbicides made by Monsanto, BASF and Corteva Agriscience. The court found the EPA ignored the risks of dicamba damage.

PCB Pollution Settlement 

Bayer also announced a series of agreements that resolve cases the company said represent most of its  exposure to litigation involving water contamination by PCBs, which Monsanto manufactured until  1977. One agreement establishes a class that includes all local governments with EPA permits involving water discharges impaired by PCBs. Bayer said it will pay a total of approximately $650 million to the class, which will be subject to court approval.

Additionally, Bayer said it has entered into separate agreements with the Attorneys-General of New Mexico, Washington, and the District of Columbia to resolve PCB claims. For these agreements, which are separate from the class, Bayer will make payments totally approximately $170 million.

Bayer said the potential cash outflow will not exceed $5 billion in 2020 and $5 billion in 2021 with the remaining balance to be paid in 2022 or later.

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.

Big Ag groups argue court cannot tell EPA when to ban dicamba

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The heaviest of Big Ag’s heavy hitters told a federal court it should not try to stop GMO cotton and soybean farmers from using illegal dicamba weed killers through the end of July, despite the court’s order earlier this month for an immediate ban.

Six national trade associations, all of which have long-standing financial ties to Monsanto and the other companies selling the dicamba products in question,  filed a brief on Wednesday with the U.S. Court of Appeals for the Ninth Circuit urging the court not to try to interfere with the Environmental Protection Agency’s (EPA) announcement that farmers could continue to use the dicamba products through July 31.

They also asked the court not to hold the EPA in contempt as has been requested by the groups that won the June 3 court order issuing the ban.

“America’s soybean and cotton growers would risk severe financial harm if prevented from using Dicamba Products this growing season,” states the brief filed by the American Farm Bureau Federation, American Soybean Association, National Cotton Council of America, National Association of Wheat Growers, National Corn Growers Association, and National Sorghum Producers.

Separately, CropLife America, an influential lobbyist for the agrichemical industry, filed a brief  stating it wanted to provide “Helpful Information to the Court.” CropLife stated in the filing that the court has no authority over how the EPA proceeds to cancel the use of pesticide products such as dicamba weed killers.

The moves are but the latest in a dramatic flurry of events that followed the Ninth Circuit ruling, which found that the EPA violated the law when it approved dicamba products developed by Monsanto – owned by Bayer AG, as well as products sold by BASF, and DuPont, owned by Corteva Inc.

The court ordered an immediate ban on use of each of the companies’ products, finding that the EPA “substantially understated the risks” those products pose to farmers growing crops other than genetically engineered cotton and soy.

The EPA appeared to flout the order, however, when it told the cotton and soy farmers they could continue to spray the herbicides in question through July 31.

The Center for Food Safety (CFS) and other groups that originally took the EPA to court over the matter went back to court last week, demanding that the 9th Circuit hold the EPA in contempt. The court is now considering that motion.

“EPA and the pesticide companies have tried to confuse the issue and try to intimidate the Court,” said George Kimbrell, CFS legal director and counsel for the petitioners. “The Court held the product uses unlawful and EPA’s manipulations cannot change that.”

The order banning the company’s dicamba products has triggered an uproar in farm country because many soybean and cotton farmers planted millions of acres of genetically altered dicamba-tolerant crops developed by Monsanto with the intent of treating weeds in those fields with the dicamba herbicides made by the three companies. The crops tolerate the dicamba while the weeds die.

The farm lobby groups said in their brief that 64 million acres were planted with the dicamba-tolerant seeds this season. They said if those farmers cannot spray over their fields with the dicamba products they will be “largely defenseless against weeds resistant to other herbicides, causing
potentially significant financial consequences from yield losses.”

When Monsanto, BASF and DuPont/Corteva rolled out their dicamba herbicides a few years ago they  claimed the products would not volatize and drift into neighboring fields as older versions of dicamba weed killing products were known to do. But those assurances proved false amid widespread complaints of dicamba drift damage.

More than one million acres of crops not genetically engineered to tolerate dicamba were reported damaged last year in 18 states, the federal court noted in its ruling.

“The EPA’s mission is to protect human health and the environment…” said National Family Farm Coalition board president Jim Goodman. “Their contempt for this mission could not be more clearly expressed than their flagrant disregard of the Ninth Circuit Court of Appeals’ ruling to stop over-the-top applications of dicamba immediately to prevent millions of acres of farmers’ crops from being destroyed.”

In February, a Missouri jury ordered Bayer and BASF to pay a peach farmer $15 million in compensatory damages and $250 million in punitive damages for dicamba damage to the farmer’s orchards. The jury concluded that  Monsanto and BASF conspired in actions they knew would lead to widespread crop damage because they expected it would increase their own profits

Panicked chemical giants seek leeway in court ban on their weed killers

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Citing an “emergency,” chemical giants BASF and DuPont have asked a federal court to allow them to intervene in a case in which the court earlier this month ordered their dicamba herbicides to be immediately banned along with a dicamba product made by Monsanto owner Bayer AG.

The action by the chemical companies follows a June 3 ruling by the U.S. Court of Appeals for the Ninth Circuit that said the Environmental Protection Agency (EPA) had violated the law when it approved the dicamba products developed by Monsanto/Bayer, BASF and DuPont, owned by Corteva Inc.

The court ordered an immediate ban on use of each of the company’s dicamba products, finding that the EPA “substantially understated the risks” of the dicamba herbicides and “failed entirely to acknowledge other risks.”

The EPA flouted that order, however, telling farmers they could continue to spray the herbicides in question through the end of July.

The consortium of farm and consumer groups that originally filed the case against the EPA rushed back to court last week, asking for an emergency order holding the EPA in contempt.  The court gave the EPA until the end of the day Tuesday, June 16, to respond.

Uproar in Farm Country

The order banning the companies’ dicamba products has triggered an uproar in farm country because many soybean and cotton farmers planted millions of acres of dicamba-tolerant crops developed by Monsanto with the intent of treating weeds in those fields with the dicamba herbicides made by the three companies.

The “dicamba crop system” provides for farmers to plant their fields with dicamba-tolerant crops, which they can then spray “over-the-top” with dicamba weed killer. The system has both enriched the companies selling the seeds and chemicals and and helped farmers growing the special dicamba-tolerant cotton and soy deal with stubborn weeds that are resistant to glyphosate-based Roundup products.

But for the large number of farmers who do not plant the genetically engineered dicamba-tolerant crops, widespread use of dicamba herbicides has meant damage and crop losses because dicamba tends to volatize and drift long distances where it can kill crops, trees and shrubs that are not genetically altered to withstand the chemical.

The companies claimed their new versions of dicamba would not volatize and drift as older versions of dicamba weed killing products were known to do. But those assurances proved false amid widespread complaints of dicamba drift damage. More than one million acres of crop damage was reported last year in 18 states, the federal court noted in its ruling.

Many farmers initially celebrated the court ruling and were relieved that their farms and orchards would be spared this summer from the dicamba damage they’ve experienced in prior summers. But the relief was short-lived when the EPA said it would not immediately enforce the court-ordered ban.

In a filing made Friday, BASF pleaded with the court not to enforce an immediate ban and told the court that it will need to close a manufacturing facility in Beaumont, Texas, that currently “operates 24 hours a day nearly continuously through the year” if it is not able to produce its dicamba herbicide brand called Engenia. BASF has spent $370 million in recent years improving the plant and employs 170 people there, the company said.

Noting “significant investments” in its product, BASF also told the court that there is enough of its product currently throughout its “customer channel” to treat 26.7 million acres of soybeans and cotton.  BASF has an additional $44 million worth of the Engenia dicamba product in its possession, enough to treat 6.6 million acres of soybeans and cotton, the company said.

DuPont/Corteva made a similar argument, telling the court in its filing that the ban “directly harms” the company “as well as the many farmers across this country that are in the midst of the growing season.”  It will damage the company’s “reputation” if its herbicide is banned, the company told the court.

Moreover, DuPont/Corteva expects to generate “significant revenues” from the sales of its dicamba herbicide, called FeXapan and will lose that money if the ban is enforced, the company said.

Monsanto was active in the case supporting the EPA approvals prior to the ruling, but both BASF and DuPont asserted wrongly that the court case applied only to Monsanto’s products and not to theirs. The court made it clear, however, that the EPA illegally approved the products made by all three companies.

Led by the Center for Food Safety,  the petition against the EPA was also brought by the National Family Farm Coalition, Center for Biological Diversity, and Pesticide Action Network North America.

In asking the court to find the EPA in contempt, the consortium warned of the crop damage to come if the dicamba products are not banned immediately.

“EPA cannot get away with allowing the spraying of 16 million more pounds of dicamba and resulting damage to millions of acres, as well as significant risks to hundreds of endangered species,” the consortium said in its filing. “Something else is at stake too: the rule of law. The Court must act to prevent injustice and uphold the integrity of the judicial process. And given the blatant
disregard EPA showed for the Court’s decision, Petitioners urge the Court to hold EPA in contempt.”

Dicamba Fact Sheet

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Dicamba (3,6-dichloro-2-methoxybenzoic acid) is a broad-spectrum herbicide first registered in 1967. The herbicide is used on agricultural crops, fallow land, pastures, turfgrass and rangeland. Dicamba is also registered for non-agricultural uses in residential areas and other sites, such as golf courses. At these types of sites, it is primarily used to control broadleaf weeds such as dandelions, chickweed, clover and ground ivy.

Dicamba can be found in liquids, dusts and granule products. There are more than 1,000 products sold in the United States that include dicamba, according to the National Pesticide Information Center.

Dicamba’s mode of action is as an auxin agonist: it produces uncontrollable growth that leads to plant death.

Environmental Concerns 

Older versions of dicamba were known to drift far from where they were applied, and typically were not used widely during warm growing months when they could kill off-target crops or trees.

The Environmental Protection Agency approved the registration of new dicamba formulations in 2016, however, allowing for a new use of – “over-the-top” applications on growing dicamba-tolerant cotton and soybean plants. Scientists warned the new uses would result in dicamba drift damage.

The new uses for dicamba came about because of the development of widespread weed resistance to glyphosate-based herbicides, including the popular Roundup brand, introduced by Monsanto in the 1970s. In the 1990s, Monsanto introduced glyphosate-tolerant crops, and encouraged famers to use its “Roundup Ready” cropping systems. Farmers could plant Monsanto’s genetically engineered glyphosate-tolerant soybeans, corn, cotton and other crops, and then spray glyphosate herbicides such as Roundup directly over the top of the growing crops without killing them. The system made weed management easier for farmers as they could spray the chemicals directly over their entire fields during the growing season, wiping out weeds that competed with the crops for moisture and soil nutrients.

The popularity of the Roundup Ready system led to a surge in weed resistance, however, leaving farmers with fields of hardy weeds that would no longer die when sprayed with glyphosate.

In 2011 Monsanto announced that glyphosate, had been “relied on too long by itself” and said it planned to collaborate with BASF and develop a cropping system of genetically engineered crops that would tolerate being sprayed with dicamba. It said it would introduce a new type of dicamba herbicide that would not drift far from fields where it was sprayed.

Since the introduction of the new system, complaints about dicamba drift damage have surged in several farm states, including hundreds of complaints from Illinois, Indiana, Iowa, Missouri and Arkansas.

In a report dated Nov. 1, 2017, the EPA said it had tallied 2,708 official dicamba-related crop injury investigations (as reported by state departments of agriculture). The agency said there were more than 3.6 million acres of soybeans impacted at that time. Other impacted crops were tomatoes, watermelon, cantaloupe, vineyards, pumpkins, vegetables, tobacco, residential gardens, trees and shrubs

In July 2017, the Missouri Department of Agriculture temporarily issued a “Stop Sale, Use or Removal Order,” on all dicamba products in Missouri.  The state lifted the order in September 2017.

These are some dicamba products:

On Oct. 31, 2018, the U.S. Environmental Protection Agency (EPA) announced an extension of Engenia, XtendiMax and FeXapan registrations through 2020 for “over-the-top” use in dicamba-tolerant cotton and soybean fields. EPA said it had enhanced the previous labels and put in place additional safeguards in an effort to increase the success and safe use of the product in the field.

The two-year registration is valid through Dec. 20, 2020. The EPA has stated the following provisions:

  • Only certified applicators may apply dicamba over-the-top (those working under the supervision of a certified applicator may no longer make applications)
  • Prohibit over-the-top application of dicamba on soybeans 45 days after planting or up until the R1 growth stage (first bloom), whichever comes first
  • Prohibit over-the-top application of dicamba on cotton 60 days after planting
  • For cotton, limit the number of over-the-top applications from four to two
  • For soybeans, the number of over-the-top applications remains at two
  • Applications will be allowed only from one hour after sunrise to two hours before sunset
  • In counties where endangered species may exist, the downwind buffer will remain at 110 feet and there will be a new 57-foot buffer around the other sides of the field (the 110-foot downwind buffer applies to all applications, not just in counties where endangered species may exist)
  • Enhanced tank clean-out instructions for the entire system
  • Enhanced label to improve applicator awareness on the impact of low pH on the potential volatility of dicamba
  • Label clean up and consistency to improve compliance and enforceability

U.S. Court of Appeals 9th Circuit Ruling 

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. The court 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.

More details can be found here. 

Food Residues 

Just as glyphosate applications in farm fields have been found to leave residues of glyphosate on and in finished foods, such as oatmeal, breads, cereals, etc., dicamba residues are expected to leave residues in food. Farmers whose produce has been contaminated with dicamba residues via drift have expressed concerns that their products might be rejected or otherwise harmed commercially because of the residue issue.

The EPA has set tolerance levels for dicamba is several grains and for the meat of livestock that consume grains, but not for a variety of fruits and vegetables. A tolerance for dicamba in soybeans is set at 10 parts per million, for instance, in the United States, and a 2 parts per million for wheat grain. Tolerances can be seen here. 

The EPA has issued this statement regarding dicamba residues in food: “EPA performed the analysis required by the Federal Food, Drug and Cosmetic Act (FFDCA) and determined that residues on food are “safe” – meaning that there is a reasonable certainty of no harm to people, including all reasonably identifiable subpopulations, including infants and children, from dietary and all other non-occupational exposure to dicamba.”

Cancer and Hypothyroidism 

The EPA states that dicamba is not likely to be carcinogenic, but some studies have found an increased risk of cancer for users of dicamba.

See these studies regarding the human health effects of dicamba:

Dicamba use and cancer incidence in the agricultural health study: an updated analysis International Journal of Epidemiology (05.01.2020) “Among 49 922 applicators, 26 412 (52.9%) used dicamba. Compared with applicators reporting no dicamba use, those in the highest quartile of exposure had elevated risk of liver and intrahepatic bile duct cancer and chronic lymphocytic leukaemia and decreased risk of myeloid leukaemia.”

Pesticide Use and Incident Hypothyroidism in Pesticide Applicators in the Agricultural Health Study.  Environmental Health Perspectives (9.26.18)
“In this large prospective cohort of farmers that were occupationally exposed to pesticides, we found that ever-use of four organochlorine insecticides (aldrin, chlordane, heptachlor, and lindane), four organophosphate insecticides (coumaphos, diazinon, dichlorvos, and malathion), and three herbicides (dicamba, glyphosate, and 2,4-D) was associated with increased risk of hypothyroidism.”

Hypothyroidism and pesticide use among male private pesticide applicators in the agricultural health study. Journal of Occupational Environmental Medicine (10.1.14)
“The herbicides 2,4-D, 2,4,5-T, 2,4,5-TP, alachlor, dicamba, and petroleum oil were all associated with an increased odds of hypothyroidism”

A review of pesticide exposure and cancer incidence in the Agricultural Health Study cohort.  Environmental Heath Perspectives (8.1.10)
“We reviewed 28 studies; most of the 32 pesticides examined were not strongly associated with cancer incidence in pesticide applicators. Increased rate ratios (or odds ratios) and positive exposure–response patterns were reported for 12 pesticides currently registered in Canada and/or the United States (alachlor, aldicarb, carbaryl, chlorpyrifos, diazinon, dicamba, S-ethyl-N,N-dipropylthiocarbamate, imazethapyr, metolachlor, pendimethalin, permethrin, trifluralin).”

Cancer Incidence among Pesticide Applicators Exposed to Dicamba in the Agricultural Health Study. Environmental Health Perspectives (7.13.06)
“Exposure was not associated with overall cancer incidence nor were there strong associations with any specific type of cancer. When the reference group comprised low-exposed applicators, we observed a positive trend in risk between lifetime exposure days and lung cancer (p = 0.02), but none of the individual point estimates was significantly elevated. We also observed significant trends of increasing risk for colon cancer for both lifetime exposure days and intensity-weighted lifetime days, although these results are largely due to elevated risk at the highest exposure level.”

Non-Hodgkin’s Lymphoma and Specific Pesticide Exposures in Men: Cross-Canada Study of Pesticides and Health.  Cancer Epidemiology, Biomarkers and Prevention (11.01)
“Among individual compounds, in multivariate analyses, the risk of NHL was statistically significantly increased by exposure to the herbicides…dicamba (OR, 1.68; 95% CI, 1.00–2.81); ….In additional multivariate models, which included exposure to other major chemical classes or individual pesticides, personal antecedent cancer, a history of cancer among first-degree relatives, and exposure to mixtures containing dicamba (OR, 1.96; 95% CI, 1.40–2.75)…were significant independent predictors of an increased risk for NHL”

Litigation 

The dicamba drift damage concerns have prompted lawsuits from farmers in many U.S. states. Details on the litigation can be found here.