The Dicamba Drift Class Action Lawsuit

Beginning in 2016, the herbicide dicamba began causing serious crop damage on farms where the product was not even being sprayed. Crops were dying because dicamba was blowing or washing onto the property of nearby farms.

Dicamba has been in use by professional landscape engineers and home gardeners for over seventy years, most often as an ingredient in other herbicidal products. Recently, dicamba was reintroduced by agribusiness giant Monsanto as an ingredient in a “next-generation” herbicide, designed for its “Roundup Ready 2 Xtend” soybeans.

However, this product is drifting onto other fields – even across state lines – and causing serious damage to other crops. As a result, state agriculture authorities have either banned the substance, or are considering such bans.

Additionally, dicamba is giving rise to an increasing number of lawsuits from commercial farmers who have suffered financial losses as a result of dicamba drift.

What is Dicamba

First developed in England during the Second World War, dicamba is a broad-spectrum herbicide found in several brands of commercial weed killer, including Ortho Weed B Gon, Ace Lawn Weed Killer and Roundup Max.

Chemically, it’s part of a group known as the chlorophenoxy family. More specifically, it is an organochloride, a carbon-based compound, the molecules of which contain atoms of the element chlorine. It is derived from benzoic acid, a substance occurring naturally in several plant species and commonly used as a food preservative.

How Does Dicamba Work

Dicamba imitates a natural plant hormone, known as auxin. Produced in the stem tip, the primary role of auxin is to work in combination with cytokinin, the hormone involved in cell division and reproduction.

Auxin causes cells to elongate in parts of the plant that are not exposed to sunlight; essentially, it’s what causes the plant to grow. When dicamba is applied, it acts like auxin, raising the plant’s metabolism and increasing its growth rate. Ultimately the plant grows too quickly for the amount of nutrients available to it, causing it to literally starve to death.

What is Dicamba Primarily Used For

Home gardeners have long used dicamba for controlling both annual and perennial weeds, particularly those of the broadleaf variety, as well as woody plants. In agriculture, dicamba has been used for weed control in grain fields such as wheat and maize, pastures, and livestock range land. In non-agriculture settings, dicamba is applied to home lawns and gardens as well as golf courses.

Dicamba is also applied along roadways, railroad tracks, and fences. Used as an ingredient in more than 1,100 products, dicamba is available as both a concentrate and as a standalone product.

Dicamba is packaged in liquid form as well as a powder or granulated salt.

Dicamba Exposure & Personal Injuries

Dicamba can come into contact with skin, inhaled, or accidentally ingested. It is important for those who come into contact with dicamba, either in dry or liquid form, to wash thoroughly before eating, drinking, or smoking. Dicamba dust is also found in farmhouses and wells. Although these concentrations are at low levels, there are serious questions about the effects on human health.

Dicamba is not easily absorbed through the skin, yet it can cause serious dermal irritation. Most often, it enters the body through the eyes, nose and/or mouth. Exposure to the eyes can result in permanent damage, so it is crucial to rinse them for at least 15 minutes in case of dicamba contact.

Symptoms of dicamba exposure include dizziness and irritation of the mucous membranes. When ingested, it can cause vomiting, loss of appetite, muscle spasms, breathing difficulties, and in extreme cases, severe abdominal pain.

Fortunately, dicamba is rapidly eliminated from the body through the urine, usually within 48 to 72 hours. However, much remains unknown about dicamba’s long-term effects on human and animal health.

There is strong evidence that ongoing dicamba exposure can increase the risk of non-Hodgkin’s lymphoma and other diseases among farmers and agricultural workers. Research is continuing into these issues.

In June of 2017, the Arkansas State Plant Board issued a ban on the use of dicamba in response to numerous complaints from farmers about dicamba drift from soybean fields, which has been resulting in damage to other crops.

Several reports have also been received by the University of Missouri. Kevin Bradley of the University’s plant sciences department has received numerous reports from growers. In an interview with the Delta Farm Press, Bradley said “There’s a lot of suspected dicamba drift in the state [and] a lot of injury happening. Most of it is soybeans, but the damage complaints I’ve heard is also on diverse crops with some vegetables, peas, melons and other things.”

Since that time, officials in both states have banned all use of dicamba. At the same time, there has been a growing number of dicamba drift reports in western Tennessee. As of the end of June 2017, 27 commercial farmers throughout the western part of the state had filed complaints with the Tennessee Department of Agriculture.

Scientists fear that number will only get worse. So far, dicamba damage has shown up in ten states from Minnesota to North Carolina. In addition to the crops mentioned above, dicamba has been causing damage to tomatoes, peaches, rice, and cotton, as well as alfalfa and soy.

How Much is Dicamba being Utilized in the United States

Although commonly used on home lawns, golf greens, and roadsides for decades, dicamba was not legally approved for use on food crops until recently because of the drift problem. The primary reason that farmers raising genetically-modified crops have been turning to dicamba is because of the extensive use of the glyphosate containing herbicide Roundup.

Over the past few decades, this has resulted in the evolution of glyphosate-resistant “superweeds,” which have now spread to 61 million acres of farmland across the U.S., nearly doubling in just six years.

In response to this problem, Monsanto developed new GMO strains that were resistant to both glyphosate and dicamba. The company introduced these new crops for the 2016 growing season – several months prior to the EPA’s approval of dicamba for use on food crops in November of that year.

In order to win that approval, the industry was expected to come up with a new dicamba formulation that would make it less volatile and subject to drift. Two formulations – XtendiMax, a Monsanto product, and Engenia, developed by BASF, were approved by the EPA in the fall of 2016.

So far, Monsanto has invested over $1 billion in the development of its new dicamba-based herbicide. While the company projects growing sales as the amount of acreage planted with its GMO soy crops triple between 2017 and 2019, a study from the University of Arkansas Division of Agriculture suggests that noxious weeds may develop dicamba resistance even more quickly than have become resistant to glyphosate – possibly in as little as three generations.

Dicamba Crop Damage

If the use of dicamba was prohibited before November 2016 and the new formulations are designed to prevent drift, why are there so many reports of crop damage? There are two possible explanations: (1) farmers who have been using dicamba illegally were or are using older formulations, such as Diablo, Vanquish and Banvel (which have never been approved for use on food crops); or (2) the “new” formulations have failed to live up to the promises made by the manufacturers.

In the former case, some farmers who have been engaging in the unauthorized use of dicamba have been issued citations and assessed monetary fines. However, these penalties typically amount to little more than a slap on the wrist. Fines do not exceed $1,000, and in many cases, violators are simply subject to warnings.

Meanwhile, Modern Farmer reports that farms suffering dicamba-related crop damage may lose up to 30 percent of their yield this season. According to a report from the Purdue University Extension Office, crop damage due to dicamba can manifest itself in a number of ways. These include deformed leaves that are twisted, narrow or cup downward as well as roots exposure about the ground.

Dicamba Class Action Lawsuit

Because penalties are relatively light, they are unlikely to change behavior among those engaged in the illegal use of dicamba. At the same time, Monsanto and BASF will likely not face criminal charges, since technically, they have not violated any laws.

However, a recent class-action lawsuit filed against Monsanto and BASF in June 2017 alleges that those companies bear civil liability because they failed to have a safe, EPA-approved herbicide available at the time they released their GMO seeds.

According to a report published in Hoosier Ag Today, “Monsanto and BASF sold the dicamba crop system while knowing it could wipe out crops, fruits, and trees that are not dicamba tolerant. The farmers…who do not plant dicamba tolerant crops are left with no protection from the herbicide.”

Eligibility to Participate in the Dicamba Class Action Lawsuit

In order to qualify as a plaintiff in the dicamba class action lawsuit, the candidate must be a commercial farmer who is able to demonstrate crop losses incurred during the 2017 growing season.

It should be noted that while some herbicide damage is apparent within days, often it does not appear until weeks following initial exposure. Weather records, particularly wind speed and direction, and humidity, are helpful in building a case.

Prospective plaintiffs should have testing done of both the soil and the plant tissues. Such testing services are available at most local commercial labs, and run between $65 and $100 per sample. It’s important to rule out other possible factors, such as pest damage, disease, root stress, soil pH, drought and other possible contaminants.