Monsanto placed profits ahead of possible damage to Kansas crops when it marketed seeds resistant to a powerful weedkiller before making a less volatile herbicide available, a Nemaha County farm alleges in a federal lawsuit filed this week.
4-R Farms, a Corning-based grower of soybeans and other crops, claims Monsanto knew other crops would be damaged by dicamba, a highly volatile herbicide. Instead of waiting for a chemical less likely to evaporate and spread to neighboring plants, the agriculture and biotech giant began marketing crops resistant to dicamba herbicide. As a result, potentially thousands of acres of crops that weren't resistant to the herbicide died, including more than 200 acres of soybeans at 4-R farms, according to the lawsuit.
The petition filed Thursday could be the catalyst for a class action lawsuit of Kansas farmers against Monsanto, which faces a growing docket of legal challenges.
“I think now as hard as things are on farmers and producers with tariffs and other difficulties in the markets, any hit they take on what is traditionally their strongest cash crop is particularly hard,” said Lee Cross, the Kansas City, Mo.-based agriculture lawyer who filed the lawsuit. “Corn is king, but soybeans are a moneymaker.”
The 2018 harvest will reveal the extent of damages both in acres and dollars in Kansas and at the more than 1,300 acre 4-R Farms, Cross said. Dicamba hasn't impacted Kansas as much as states to the east, where higher rainfall and other factors easily spread the chemical. Nationally, the Environmental Protection Agency estimated 3.6 million acres — or about 4 percent of American soybeans — were damaged by dicamba in 2017. The Kansas Department of Agriculture reported it received complaints of dicamba damage from more than 213 farmers last year, according to the lawsuit.
Jeff Neu, a Monsanto spokesman, said the company learned of the lawsuit Friday and hadn't yet been served with the petition.
"Our customers tell us they are experiencing outstanding weed control and achieving on-target applications across 50 million acres of Roundup Ready 2 Xtend soybeans and cotton with XtendFlex Technology," Scott Partridge, Monsanto vice president, said in a statement Neu provided. "Growers need this technology to fight tough-to-manage weeds on their fields."
The Kansas lawsuit names chemical company BASF, with whom Monsanto contracts, as a co-defendant. It opens the door for other Kansas farmers to join in a class action petition. Cross said he had contact with other growers affected by the herbicide but wouldn’t say how many.
Monsanto, headquartered near St. Louis, Mo., faces a class action lawsuit in eastern Missouri from farmers alleging the hard-to-control chemical hurt their crops.
The Kansas lawsuit alleges Monsanto purposefully marketed the dicamba-resistant seeds, called Xtend, before the less potent herbicide was available in order to create demand for their products.
“Defendants understood that such injuries would force farmers to defensively plant Xtend crops in future growing seasons and thereby increase the market,” the lawsuit claims.
Dicamba destroys broadleaf plants, including trees, fruits, vegetables and soybeans. The chemical is labeled as volatile because it can quickly vaporize once applied and spread to neighboring plants.
Monsanto engineered its Xtend crop varieties to resist dicamba and in 2012 applied for an EPA registration for a new herbicide designed to be less volatile. Xtend allows cotton and soybean farmers to spray the crops with dicamba without harm to their crop. Nontolerant crops and vegetation nearby remain unprotected.
However, by 2015, the EPA hadn't approved the less volatile chemical.
Monsanto faced a choice: Wait to sell its dicamba-resistant seed until the EPA registered the new dicamba, or sell the seed knowing farmers might apply the older, more destructive herbicide to it, risking damage to neighboring crops.
“Monsanto chose profit and advancement of its own interests over the harm to others that inevitably would occur,” the lawsuit said.
Because dicamba is so likely to drift away from its target, the chemical traditionally hasn't been used on soybeans and is applied before planting or after harvest to reduce damage to neighboring crops, said Dallas Peterson, Kansas State University extension weed specialist.
A more resistant soybean was first available in 2016, but the bulk of the marketing began last year, he said.
Though Monsanto, BASF and DuPont advertise dicamba products that are less likely to drift onto other plants, the chemical is still capable of travel via vapor or particle, Peterson said. Extension officers across the state reported soybean damage from dicamba last year, and many farmers are again reporting symptoms this year.
Soybeans, unlike other crops, are far more susceptible to herbicides, but tracking dicamba presents a challenge. Signs of damage may takes weeks to appear after the initial exposure, making it hard to determine when the plant was hit.
"It's a very difficult situation," Peterson said.
This lawsuit is the latest in a growing caseload for Monsanto. On Tuesday, a federal judge in California ruled cancer victims and their families could present expert testimony that says Roundup weedkiller caused non-Hodgkin lymphoma.
The lawsuits say Monsanto long knew about the cancer risk but failed to warn people. The ruling allows the claims to move forward, though the judge warned it could be a "daunting challenge" to convince him to allow a jury to hear testimony that glyphosate was responsible for individual cancer diagnoses, The Associated Press reported.
In the Kansas lawsuit, Cross requests unspecified damages and a trial by federal jury in Topeka.