Farmers are “not necessarily buying a product because it’s better and meets their needs, they’re buying it because it’s a defense mechanism” – attorney representing the plaintiffs

EXCERPT: The [law]suit says the defendants “actually benefit” from rampant drift, because it pressures farmers to adopt dicamba-tolerant seed to avoid damage.
—

Class lawsuit takes aim at dicamba producers, accuses Monsanto reps of condoning illegal spraying

By Bryce Gray
St. Louis Post-Dispatch, Jul 23, 2017
http://www.stltoday.com/business/local/class-lawsuit-takes-aim-at-dicamba-producers-accuses-monsanto-reps/article_6b6226cf-a566-5877-b6ff-e20423429e4c.html

As suspected drift from dicamba took a toll on farmers the past two growing seasons, Monsanto — the Creve Coeur-based agribusiness company that helped give the herbicide newfound prominence with its introduction of dicamba-tolerant crop varieties — publicly urged growers not to spray illegal kinds of the product while new formulations supposedly less prone to drift waited for regulatory approval.

But a class-action lawsuit filed Wednesday in federal court in St. Louis accuses company sales representatives of secretly giving farmers assurances that using unauthorized or “off-label” spray varieties would be all right.

“This was Monsanto’s real plan: publicly appear as if it were complying, while allowing its seed representatives to tell farmers the opposite in person,” the suit alleges, based on farmer testimony. “Their sales pitch: assure purchasers that off-label and illegal uses of dicamba would ‘be just fine.’”

That’s one of many allegations in the suit to place blame from soaring complaints of dicamba damage on companies that produce the weedkiller and accompanying seed varieties.

Monsanto, BASF, DuPont and Pioneer are the agribusiness and chemical companies associated with the herbicide named as defendants in the case. Plaintiffs include seven Arkansas farms affected by alleged dicamba drift this year, though more may be added, according to Paul Lesko, a St. Louis-based attorney with Peiffer Rosca Wolf, the law firm representing the plaintiffs.

The suit outlines the shifting circumstances that have surrounded suspected dicamba damage since Monsanto first released dicamba-tolerant cotton in 2015 and brought resistant soybeans to market the following year. Corresponding herbicides produced by the defendants weren’t available for either growing season, only gaining approval since late 2016. Their absence led many growers with dicamba-tolerant seeds to allegedly turn to more drift-prone — or volatile — forms of the herbicide, leaving their fields unharmed but putting nearby growers with nonresistant crops at risk.

But even though the new, proper forms of the herbicide are now available, alleged misuse of dicamba has shot to new heights in 2017. Hundreds of complaints have poured in to state officials in Arkansas and Missouri alone, with reports of other suspected damage emerging in places, such as Tennessee, Mississippi, Kansas, Illinois and Indiana.

Citing weed and crop science experts from affected states, the suit claims this year’s damage was a foreseeable consequence of the “much larger rollout” of dicamba products, pointing to continued concerns about their tendency to vaporize and drift, even when applied properly.

“Following (the label instructions) as they are now is a Herculean task. Talk about threading the needle — you can’t spray when it’s too windy. You can’t spray under 3 miles per hour. You got to keep the boom down — there are so many things,” said University of Tennessee weed management expert Larry Steckel, in an excerpt from the suit. “It looks good on paper, but when a farmer or applicator is trying to actually execute that over thousands of acres covering several counties, it’s almost impossible.”

The suit says the defendants “actually benefit” from rampant drift, because it pressures farmers to adopt dicamba-tolerant seed to avoid damage.

Monsanto officials said last month that the technology accounts for “one of the largest launches” in company history. Those sales, the lawsuit contends, amount to “illegal monopolistic behavior,” as farmers rush to adopt the product. “They’re not necessarily buying a product because it’s better and meets their needs, they’re buying it because it’s a defense mechanism,” Lesko told the Post-Dispatch.

Monsanto and BASF indicated they were aware of the suit but declined to comment on specific allegations. Both companies cited their efforts to educate growers about correct application of dicamba.

“We remain confident in growers’ ability to follow all application requirements and abide by the law,” Monsanto said in a statement. “The (Environmental Protection Agency) spent nearly seven years reviewing and analyzing data and research conducted on the product before issuing a label. We will defend ourselves.”

DuPont declined to comment on the litigation, but said “this year thousands of growers have used these products properly and successfully.”

Lesko, though, maintains that the cropping system skews benefits to the companies, and not to farmers.

“It’s kind of a cycle and it only benefits the defendants. As harm increases, more farmers have to purchase the defendants’ products,” said Lesko, adding that there’s “already concern” about a lack of diversity in agriculture.

“This cycle needs to stop,” he said. “It’s never good to have just one type of crop out there.”