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Bayer pauses sale, distribution, and use of Xtendimax following Court decision

Fallout continues from court decision vacating registration of three dicamba herbicides.

The fallout is continuing from a June 3 opinion by the U.S. Court of Appeals for the Ninth Circuit vacating the Environmental Protection Agency’s (EPA) 2018 conditional registration of three dicamba herbicides for use in dicamba-tolerant soybeans and cotton. Herbicides impacted include Xtendimax (Bayer), Engenia (BASF), and FeXapan (Corteva Agriscience). 

The U.S. Court of Appeals for the Ninth Circuit, headquartered in San Francisco, said the EPA failed to acknowledge the risks – such as off-target dicamba damage – in its two-year 2018 conditional registration that covered the 2019 application season and was to cover the 2020 season. 

Tavium, a dicamba product sold by Syngenta and registered with the EPA in 2019, is not affected by the ruling. 

Company Statements

Bayer issued this statement following the ruling: “We are currently assessing options after the Court ruling on XtendiMax herbicide registration. Pending further guidance from the U.S. EPA, Bayer has paused its sale, distribution, and use of XtendiMax herbicide. Visit our Xtendimax herbicide updates page to learn the latest.” 

BASF issued this statement following the Court decision: “The Order issued on June 3 by the United States Court of Appeals for the Ninth Circuit vacating the registration of Engenia herbicide and two other products is unprecedented and has the potential to be devastating to tens of thousands of farmers. These farmers have counted on over-the-top (OTT) applications of dicamba-based products, including Engenia herbicide, to control resistant weeds across tens of millions of dicamba-tolerant soybean and cotton acres. 
Time is of the essence. Farmers have less than a month to protect millions of acres under threat from resistant weeds that could lead to significant revenue loss in an already challenging season.
We are currently reviewing the Order and are waiting on further direction from the U.S. EPA on actions they will take as a result of this Order. We will use all legal remedies available to challenge this Order and we remain committed to serving our customers with safe and effective crop protection solutions, including Engenia herbicide.​

Corteva issued this statement following the decision. 

“Corteva is reviewing the court’s decision. We believe dicamba is an effective weed management tool for farmers that can be used safely when used according to the label.”​

Paul Minehart, a Syngenta spokesman, issued Syngenta’s statement in an e-mail: 
“When the EPA granted the reapproval of the conditional registration for Dicamba over the top of dicamba tolerant soybeans and cotton crops, Tavium Plus VaporGrip Technology herbicide was not yet registered (registration was in April 2019). As such, Tavium was not part of the ruling. We will continue to monitor the Court’s ruling and evaluate any further implications that may impact our product offerings.
In addition to Tavium, Syngenta is fortunate to have a robust herbicide portfolio that offers post emergent offerings including: Sequence, Flexstar, Flexstar GT 3.5, Prefix, Reflex, and Dual Magnum, which are all ready to for sale. 
Syngenta’s U.S. seeds business is well-positioned to support farmers in response to the dicamba ruling. Through our Golden Harvest and NK brands, we continue to offer the industry’s broadest choice of herbicide traits in high-yielding genetics, which includes a complete portfolio of Enlist E3 Soybeans, Roundup Ready 2 Xtend Soybeans and LibertyLink GT27 Soybeans.
We are committed to providing increased choice and innovative products to meet the needs of U.S. farmers. This ruling will not impact our ability to be a partner for farmers who demand choice in seed products, traits, and chemistries that tackle the unique challenges for their farming operation.”​

What To Do? 
“This ruling could not have come at a worse time for North Dakota farmers and dealers,” said Doug Goehring, North Dakota Agriculture Commissioner said in a North Dakota Department of Agriculture (NDDA) news release. “We are monitoring the developments surrounding this unsettling decision closely and expect an immediate appeal of the ruling along with a request for an emergency stay, which if granted would allow the continued use of the products while the appeal is being heard in court. Sadly, the continued use of these dicamba products for the 2020 season now depends on the outcome of the request for an emergency stay.”

The decision to grant a stay could take weeks and would only allow a narrow window for application if at all, he said. He added producers should plan accordingly in case the emergency stay is not granted.

Tavium can legally be used on dicamba-tolerant soybeans, says Aaron Hager, University of Illinois Extension weed specialist. If not specifically prohibited from being tankmixed with glyphosate, farmers and applicators can use a variety of postemergence chemistries, he says. 

Still, whether that chemical mix is successful depends on weed species present and the herbicide resistance profile of those species, he says. Waterhemp not only resists glyphosate in many cases, but many fields also have PPO-resistant (Group 14 chemistries like Flexstar) waterhemp, he says. 

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