Ninth Circuit Court Orders Cancellation of Three Dicamba Products - Updated

Ninth Circuit Court Orders Cancellation of Three Dicamba Products - Updated

REVISED: June 8, 2020 (originally published June 5, 2020)

The United States Court of Appeals for the Ninth Circuit issued a ruling on June 3, 2020 that immediately cancelled the registration of XtendiMax®, FeXapan®, and Engenia® primarily used in dicamba-resistant soybean, also known as Roundup Ready 2 Xtend® soybean.

This ruling was based on a determination that the continued registration of aforementioned products violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). It immediately canceled the sale and use of these products nationwide. We are monitoring the developments surrounding this decision closely with Nebraska Department of Agriculture (NDA), United States Environmental Protection Agency (USEPA), and industry.

June 8, 2020 - The U.S. Environmental Protection Agency (EPA) released a statement providing farmers with needed clarity following the Ninth Circuit Court ruling. “Growers and commercial applicators may use existing stocks that were in their possession on June 3, 2020, the effective date of the Court decision. Such use must be consistent with the product’s previously-approved label, and may not continue after July 31, 2020.”

June 6, 2020 - Nebraska Department of Agriculture Director Wellman said on June 6, “It is anticipated that the USEPA will seek some type of further review, and possibly under emergency circumstances. Therefore, until such legal process is concluded, the Nebraska Department of Agriculture will continue to allow utilization of three dicamba products. The Nebraska Department of Agriculture has not issued a stop sale order and will enforce the sales and applications of these products as they are currently registered in Nebraska." Therefore, the use of XtendiMax®, FeXapan® and Engenia® in Nebraska is allowed until further notice.

Tavium®, a pre-mix of dicamba and S-metolachlor is an additional herbicide labeled in 2019 for use in Roundup Ready 2 Xtend® soybean. When the US EPA granted the re-approval of the conditional registration for dicamba products (XtendiMax®, FeXapan® and Engenia®), Tavium® herbicide was not yet registered. For this reason, Tavium® was not part of the court order, and it is still legal to apply according to the label’s directions for use.

Dicamba off-target injury has been documented in Nebraska on sensitive soybean and other sensitive broadleaf crops in last three years (Figure 1) therefore, care must be taken when applying Tavium not only in soybean, but also dicamba based products labeled in corn.

The article "Dicamba Legal Update" from Progressive Farmer answers several key questions on this topic.

read the court's decision

More information will be shared on this topic as it becomes available.

soybean damaged by Dicamba
Figure 1. After the US Couth of the Ninth Circuit issued a ruling vacating registration of XtendiMax®, FeXapan®, and Engenia® effective immediately; their use is in legal jeopardy.