Today EPA issued a final cancellation order for the label of three dicamba products subject to a 9th Circuit Court of Appeals ruling: Engenia (BASF), FeXapan (Corteva) and XtendiMax (Bayer). The cancellation is pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).
The EPA guidance, however, states existing stocks of the three affected products can be used for a limited time under the requirements of the invalidated label. EPA will be enforcing proper application procedures during the use of remaining dicamba stocks.
“At the height of the growing season, the Court’s decision has threatened the livelihood of our nation’s farmers and the global food supply,” said EPA Administrator Andrew Wheeler. “Today’s cancellation and existing stocks order is consistent with EPA’s standard practice following registration invalidation, and is designed to advance compliance, ensure regulatory certainty, and to prevent the misuse of existing stocks.”
Key notes from the cancellation order:
- Distribution or sale is prohibited unless it’s for product disposal or returns to the registrant (BASF, Corteva or Bayer).
- Farmers and commercial applicators can use their existing stocks that were in their possession as of June 3, 2020, when the Court mandate took effect. Applications must be in line with previously-approved labels include temperature restrictions, windspeed restrictions, application date cutoffs and any other detail found in the label.
"While BASF supports the U.S. EPA’s action to allow the use of existing stocks of Engenia® herbicide by growers and commercial applicators, we believe that additional clarity and flexibility is required to address the complexities of the supply chain so that farmers have the opportunity to use Engenia this season in accordance with the EPA order. Therefore, we will be working with the EPA to address this issue," BASF said in a statement provided to AgWeb. "In addition, BASF will continue to pursue re-registration of Engenia with the U.S. EPA. BASF continues to assess its options to pursue all legal remedies available to challenge the Order."
This announcement from EPA comes with concern for some who might have been operating in states that didn't require retailers to stop selling product.
"ARA is concerned with these details, as it appears inconsistent with EPA’s long-standing existing stocks practice following registration invalidation," said Ag Retailer's Association (ARA) Senior Vice President of Public Policy and Counsel Richard Gupton. "ARA is seeking clarification on the impact on agricultural retailers that do not provide commercial application services. This EPA announcement does not fully address the continued confusion being created by the Ninth Circuit Court decision."
"The current order will create confusion, especially since it is being issued at the end of today with the June 3, 2020, cut-off date and after many individual states publicly authorized the continued sale and use of these products over the weekend and through today," Gupton continues.
Tavium, an over-the-top dicamba product created by Syngenta was not included in the Court mandate or EPA’s cancellation. The California Court made the decision last Wednesday to vacate 2018 to 2020 registrations based on FIFRA violations.
Bayer provided the following statement: "We welcome the EPA’s swift action. XtendiMax and the other low-volatility dicamba products are vital tools that many growers rely on to safely, successfully, and sustainably protect their crops from weeds. Bayer stands fully behind XtendiMax, and we will continue working with the EPA, growers, academics, and others to provide long-term access to this important tool."
This ruling stems from a lawsuit against EPA and Monsanto (Bayer after acquisition). The lawsuit alleged EPA failed to fully assess the risk of drift when the agency approved conditional use of dicamba for over-the-top use in 2018.
"Corteva Agriscience believes dicamba is an effective weed management tool for farmers that can be used effectively when used according to the label; however, we will adhere to the Ninth Circuit Court Decision and EPA order regarding the registration cancellation of DuPont™ FeXapan® herbicide Plus VaporGrip® Technology. Corteva is committed to serving our customers and will support them in assessing alternative weed control options for the 2020 season," the company said in a statement provided to AgWeb.
Stay tuned for more updates, including updated statements from the manufacturers.
*Updated 7:28 p.m. 6/8/20 with ARA's statement.
*Updated 8:13 a.m. 6/9/20 with Bayer's statement.
*Updated 9:01 a.m. 6/9/20 with BASF's statement.
*Updated 9:45 a.m. 6/10/20 with Corteva's statement.
Read more about the recent dicamba Court mandate: