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A new investigative report suggests there may have been inappropriate collaboration between Bayer and federal environmental regulators, as part of an effort to get the weedkiller dicamba back on the market, following a ban required by a federal court and report of wide-spread crop damage over the past few years.
Dicamba is a synthetic herbicide sold under various brand names, including Xtend, Xtendiimax, Engenia and Fexapen, which have been used for years by farmers nationwide to control weeds.
While dicamba was originally only applied during certain times of the year, use of the herbicide increased dramatically after new genetically modified seeds were introduced in 2016, which were intended to make crops tolerant of the weed killer. This was designed to allow farmers to use dicamba “over-the-top”, as the crops were emerging from the ground. However, this has resulted in unintended crop damage as the dicamba drifted onto neighboring farms, which did not use the genetically modified seeds.
In June 2020, the U.S. Ninth Circuit Court of Appeals vacated the U.S. Environmental Protection Agency (EPA) prior approval of dicamba formulations, after determining the agency did not pay enough attention to the risk of dicamba crop damage on neighboring farms.
Many thought the weed killer was dead at that point, but, according to a St. Louis Post-Dispatch investigative report, Bayer began preparing an outline for the EPA on how to return dicamba to the market almost immediately. By July 3, less than a month after the court’s decision, Bayer had submitted an application to get dicamba approved for sale yet again by the EPA.
The investigative report indicates more than 50 EPA employees then began essentially working for Bayer to reregister the pesticide, and the companies communicated back and forth repeatedly over multiple versions of the label, essentially collaborating on them until the FDA announced approval of a new dicamba formula in late October 2020, which Bayer claimed would no longer drift to other fields.
However, documents from during that time show the EPA seeking “concurrence” with Bayer over changes it was making to the label, essentially asking their permission. The EPA also reportedly allowed Bayer to reject certain changes to the label that the agency’s experts thought were necessary.
In contrast, the report notes that other stakeholders, such as farmers and environmental groups, do not get that kind of access to the EPA or the approval process. Nor are they given the opportunity to veto aspects of product labels like corporations appear to be given.
EPA was asking permission and approval from Bayer, BASF and Syngenta for tweaks it made to the label up to the last couple hours before final approval, as seen in the flurry of communications between the agency and dicamba registrants just hours before approval, which were obtained by the Post-Dispatch.
Dozens of dicamba drift lawsuits have been filed since August 2017, alleging that Monsanto rushed a system to market that encouraged the increased use of dicamba, while withholding or concealing information from regulatory authorities about the volatility of dicamba-resistant crops.
Farmers and environmental groups say the herbicide drifts onto neighboring crops that are not dicamba tolerant, killing them and forcing farmers to buy the genetically engineered seeds so their crops aren’t killed by dicamba.
In February 2020, a Missouri jury awarded $265 million to a peach farmer in the first dicamba crop damage lawsuit to go to trial. The verdict included $15 million in compensatory damages and $250 million in punitive damages, designed to punish Monsanto and BASF for their reckless behavior in marketing the widespread use of the weed killer.
The dicamba lawsuits claimed the high volatility is seen as a feature by the manufacturers, meant to force other farmers to use their expensive products to grow dicamba-tolerant GMO crops if they don’t want to suffer losses when their neighbors spray.