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U.S. legal system helps weeds win

Luckily, Canadian producers are still outside the reach of the Ninth Circuit Court ruling on dicamba-based herbicides

In farming circles, the term “less-forgiving” has become more than a cliché. It’s now a mirror on reality. Farmers are already dealing with an incredible list of challenges and complexities, including everything from new seed technologies, concerns about land costs, equipment decisions, commodity markets, trade issues… you name it.

Now growers in the U.S. must also juggle the fallout from a ruling last June regarding the use of three herbicides containing dicamba.

The good news north of the border — at least in the short-term — is that Canadian farmers will continue to have access to XtendiMax, Engenia and FeXapan as part of the Xtend seed technology system.

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Concern erupted a year ago about the U.S. Environmental Protection Agency (EPA) process for the renewal of registrations for dicamba-based herbicides, which were set to expire this December.

Then, a ruling by the U.S. Ninth Circuit Court on June 3, 2020, vacated the registrations for XtendiMax, Engenia and FeXapan.

The decision spurred numerous statements against the court’s decision, citing confusion on some of the ruling’s finds and expressions of disappointment by the companies involved. There were also counter-arguments offered by researchers, state authorities and other industry stakeholders. On June 8, the EPA responded and won an extension, allowing growers and commercial applicators to continue using existing stocks in their possession as of June 3, with July 31 as the final date that they could be applied.

Much of the court’s ruling laid the blame on the EPA for misrepresenting the risks of using dicamba formulations and “for failing to acknowledge other risks.” It was estimated that U.S. farmers planted roughly 56 million acres of dicamba-resistant cotton and soybean seed in 2018, while roughly 3.6 million acres were damaged in 2017.

Safe at home?

Again, none of this court action has any current impact on Canadian farmers’ use of the three products. Yet the June rulings should not be ignored or underestimated. The U.S. and Canadian legal systems are significantly different, but the herbicides face their own hurdles here; the expiry dates on their registrations in Canada range from 2021 to 2024.

Private sector interests maintain their support of the Pest Management Regulatory Agency (PMRA) and Health Canada’s maintenance of the registrations. Statements from Bayer, BASF and Corteva all emphasize a “business as usual” environment for the continued use of XtendiMax, Engenia and FeXapan. But there may be a longer-term impact on the use of the products.

Dr. Peter Sikkema isn’t so worried that these registrations are in danger here in Canada. Nor is he concerned that a similar ruling might prevent the use of 2,4-D formulations (Enlist Duo), now that glyphosate-dicamba products have been vacated in the U.S. Instead, he’s concerned because of the size of the market involved: total U.S. farm acreage is six times that of Canada’s — 899.5 million acres in the U.S (2018 USDA) compared to 158.7 million in Canada (2016 Statistics Canada).

“The more likely outcome is if the (dicamba) product is vacated in the U.S., the Canadian market is too small for BASF, Bayer and Corteva to continue with this use pattern,” says Sikkema, professor of weed management at University of Guelph’s Ridgetown Campus. “Yet this is a valuable weed management tool that needs to be used properly.”

Sikkema adds that his thoughts on the responsible use of dicamba in Xtend soybean have changed a lot during the past five years.

“I think it may be wise to stop the application of dicamba after sensitive crops have emerged in neighbouring fields,” says Sikkema. “The key going forward will be co-existence between Xtend soybean growers and their neighbours, especially in areas with sensitive crops such as non-GMO (identity preserved) soybean, dry beans, horticultural crops or organic producers. Those producers often have smaller acreages yet are surrounded by commercial crops with growers who are using transgenic technologies.”

Asked if the Enlist system might be next, Sikkema emphasizes the need to recognize “co-existence” as an important factor in maintaining access to Enlist, Xtend and other technologies.

“Off-target movement (OTM) due to volatilization is less with Enlist Duo than dicamba but there is still the issue of physical drift and temperature inversions, identical to dicamba,” warns Sikkema.

Another sight no one wants to see: healthy weeds at any time of the growing season.
photo: Supplied

That co-existence issue also carries the need for greater vigilance in using any type of chemical product here in Canada, given what has occurred in the U.S.

Dr. François Tardif, professor in the plant agriculture department at the University of Guelph, echoes the sentiments of many regarding the differences in each country’s legal system. But like Sikkema, Tardif notes growers in Canada face the same off-target movement issues, regardless of the product, as well as a growing anti-chemical sentiment among many interests.

“There’s a mix of urban-based groups that oppose pesticides and factions within farming that have problems with dicamba because they’re horticulture croppers or organic growers,” says Tardif, again echoing Sikkema. The need for vigilance has always been part of the usage plans for various herbicides. “It’s a message we have been pounding in Ontario since before Xtend was officially approved. Use it carefully and properly, and avoid drift and inversions.”

Unfortunately, even with proper use, the dicamba formulations may be the first herbicide technology to have its registration vacated in the U.S., but the Enlist system could be the next possible target of anti-chemical activists.

“Just keep doing the right thing,” says Tardif. “Use dicamba only when needed under the right conditions and using the right equipment.”

Sound advice

Doing the right thing is foremost on the minds of specialists, technicians and advisers with Bayer, BASF and Corteva. All companies have expressed their disappointment with the court’s decision, but they also maintain that most growers are responsible in their use of their respective dicamba-glyphosate formulations.

“The vast majority of growers and applicators using XtendiMax have had great success with on-target applications,” says Dr. Harp Mann, product manager with Bayer CropScience Canada. “Growers and applicators must continue to follow all label instructions and other requirements to ensure successful use of the technology. We’ll continue working with regulators, growers, academics and others to provide long-term access to this tool.”

Mann goes on to express his disappointment with the June 3 ruling while applauding the EPA’s action five days later to ensure U.S. farmers could continue using existing stocks of the products until July 31.

“The EPA is currently reviewing Bayer’s submission in support of a new registration for XtendiMax for the 2021 season and beyond,” says Mann. “Our submission included multiple new data and analyses, including those by independent academics, which will allow the EPA to make a science-based decision on a new registration.”

A grower’s bottom line

In the U.S., BASF also highlighted a particular point of contention, that “the court’s ruling during the height of the application season gave no regard to the significant investments farmers have made in their businesses, and left them without viable options for the growing season.”

For Lara Rasooli, stewardship manager for BASF, the messaging on this side of the border first acknowledges the role of the PMRA under Health Canada in regulating products under the Pest Control Product Act. It also reaches beyond the use of various products to include as many facets of integrated pest management (IPM) as possible, including crop rotation, cover crops and practices that enhance resistance management.

“Our focus remains on continuing to communicate Engenia’s stewardship practices while ensuring continued access to safe and effective crop protection solutions,” says Rasooli.

As for whether what’s happened in the U.S. might occur at some point in Canada, Rasooli points to Canada’s global reputation for its stringent regulatory system, with a particular focus on scientific evaluation of all pesticides in Canada before they become available on the market. Supporting that regulatory effort, she adds, is a continued “strength in numbers” approach when it comes to education and stewardship that is needed, not just from one company but from everyone.

“This highlights the need for continued industry-wide efforts to focus on providing education and training resources,” says Rasooli. “This is an industry effort that needs to move forward; it’s not just a BASF effort, it’s listening to growers’ needs and supporting them in order to steward the use of any protection product.”

Further reading

This article originally appeared in the October 2020 issue of the Soybean Guide.

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CG Production Editor

Ralph Pearce

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