By: Kyle Bunnell
The agrochemical and biotechnology corporation, Monsanto, regularly finds itself amid litigation over the use of its products. During the last decade, the public outcry against Monsanto and their products hasve ranged from the March Against Monsanto, a world-wide protest that took place in 52 countries on May 24th, 2014, to Canadian-born music legend Neil Young’s most recent album, The Monsanto Years.[i]
The Environmental Protection Agency (EPA) approved Monsanto’s XtendiMmax[AC1] with Vapor Grip[AC2] Technology herbicide on November 9, 2016.[ii] This came as a relief to farmers who do not have to spray genetically modified (GMO) soybeans with older version of an extremely volatile and drift-prone herbicide.[iii] Yet, growers across the Midwest and the Ssouth felt forced to switch to the new Xtend system. According to EcoWatch, "…[w]with or without approval of the new herbicide, affected farmers have indicated they will be forced to switch to dicamba-resistant varieties as an insurance policy for future growing seasons.”[iv]
The company was sharply criticized for selling the batch of GMO seeds before securing EPA approval for the herbicide designed to go along with it.[v] When Monsanto introduced dicamba-resistant soybeans for the first time, 200 dicamba spraying complaints were lodged in Missouri, with a host of aggravation for farmers, businessmen, and scientists on both sides of the issues.[vi] In fact, —a dicamba dispute between two Arkansas farmers even led to one farmer’s death and a murder indictment for the other.[vii] [AC3]
The complaints promoted Arkansas Governor Asa Hutchinson to issue a directivecreate oan August 7, 2016 directive that gave the Arkansas agriculture secretary and plant board director the power to convene and co-chair a dicamba task force to develop recommendations for future use of dicamba.[viii] The task force recommended that the Arkansas State Plant Board impose a flat ban on over-the-top use of all dicamba formulations after April 15 in 2018.[ix]
Monsanto criticized Arkansas’s dicamba ban proposal as premature, saying:,
The Board’s decision was made without hearing directly from farmers about the impact of removing a valuable weed management tool, without providing sufficient notice to the public and without allowing the opportunity for public input…[and that] the board based its decision on off-target movement claims that are still being investigated and have not been substantiated.[x][AC4]
"We need to go after Monsanto. These farmers are being hung out to dry," said Bill Bader, a Missouri peach farmer, who estimated a loss of lost approximately 30,000 trees due to the dicamba drift.[xi] [AC5]
And after Monsanto they have gone. Farmers from Alabama, Arkansas, Illinois, Kentucky, Minnesota, Mississippi, Missouri, North Carolina, Tennessee, and Texas have been deemed eligible to join a class-action lawsuit against Monsanto because of the alleged dicamba drift damage suffered byto their crops.[xii] While farmers are left destitute, they will likely have their day in the United States District Court of Missouri in the form of federal class action suit in diversity against the company.[xiii], where In this diversity class action, damages sought in the complaint include claims such as: negligence, strict liability, failure to warn, conspiracy, disgorgement of profits, and punitive damages.[xiv]
While litigation may be pending for years to come, the damages to the farmers are very real and devastating. It will be important for the soybean market, economists, plant scientists, as well as lawyers to follow the events closely to see what new complaints are filed and how the litigation will be resolved to remedy the alleged claims against the agriculture giant.
[i] Los Angles TimesAssociated Press, Protesters Around the World March Against Monsanto, USA Today (May 25, 2013, 7:52 PM), https://www.usatoday.com/story/news/world/2013/05/25/global-protests-monsanto/2361007/.
[ii] Agronomy Insider, What You Need to Know About Dicamba-Tolerant Soybeans in 2017, Successful Farming (Nov. 16, 2016), http://www.agriculture.com/crops/soybeans/what-you-need-to-know-about-dicamba-tolerant-soybeans-in-2017.
[iii] Lorraine Chow, EPA Approval of Monsanto's Dicamba Will 'Massively Increase Use of Toxic Pesticides' on GMO Crops, EcoWatch (Nov. 10, 2016, 1:47 PM), https://www.ecowatch.com/epa-monsanto-dicamba-gmos-2087899331.html.
[iv] Chow, supra note Id3.
[v] Chow, supra note 3Id.
[vi] Josh Harkinson, Farmers Say This Weedkiller Is Also Killing Their Soybean Plants, Mother Jones (June 28, 2017, 5:14 PM), http://www.motherjones.com/food/2017/06/farmers-say-this-weedkiller-is-also-killing-their-soybean-plants/.
[vii] Josh Harkinson, Farmers Say This Weedkiller Is Also Killing Their Soybean Plants, (June 28, 2017), http://www.motherjones.com/food/2017/06/farmers-say-this-weedkiller-is-also-killing-their-soybean-plants/.Id.
[viii] Gul Gil Gullickson, Monsanto Levels Criticism at Arkansas Weed Scientists, Successful Farming (Sept. 11, 2017), http://www.agriculture.com/crops/soybeans/monsanto-levels-criticism-at-arkansas-weed-scientists?did=169450.
[ix] See Agronomy Insider, What You Need to Know About Dicamba-Tolerant Soybeans in 2017, (Nov. 16, 2016) http://www.agriculture.com/crops/soybeans/what-you-need-to-know-about-dicamba-tolerant-soybeans-in-2017supra note ii.
[x] Harkinson, supra note vi6.
[xi] Chow, supra note iii3.
[xii] Sonja Begemann, Farmers File Class Action Against Monsanto for Dicamba Drift, AgProfessional (July 24, 2017, 6:39 AM), https://www.agprofessional.com/article/farmers-file-class-action-against-monsanto-dicamba-drifthttp://www.agprofessional.com/news/industry/farmers-file-class-action-against-monsanto-dicamba-drift.
[xiii] Randles and Splittgerber, LLP, Files Ten-State Class Action Lawsuit against Monsanto over Dicamba Devastation, 106.5 KTMO – The Wolf (Feb. 16, 2017), http://www.ktmoradio.com/2017/02/16/randles-and-splittgerber-llp-files-ten-state-class-action-lawsuit-against-monsanto-over-dicamba-devastation/.
[xiv] Id.Randles and Splittgerber, LLP, Files Ten-State Class Action Lawsuit against Monsanto over Dicamba Devastation, (Feb. 16, 2017), http://www.ktmoradio.com/2017/02/16/randles-and-splittgerber-llp-files-ten-state-class-action-lawsuit-against-monsanto-over-dicamba-devastation/
[AC1]“XtendiMax” (capital “M”) is the official name.
[AC2]“VaporGrip” (no space) is the official trademark name.
[AC3]Split the two statements up to make it more understandable. Both statements came from the same source.
[AC4]Under Chicago style formatting, this should become a block quote and be single-spaced. However, since the blog requirements are double-spaced, I was not sure whether this should be single-spaced or not?
[AC5]Changed the sentence structure so that it was not as much of a direct quote from the original source.