Changes to Dicamba-Containing Products Used in Soybean

On February 6, 2024, a federal court in Arizona vacated the labels of three dicamba-containing products used for in-crop broadleaf weed control in dicamba-resistant soybean varieties. The court ruled that the United States Environmental Protection Agency (EPA) violated the Federal Fungicide, Insecticide, and Rodenticide Act (FIFRA) when the agency relabeled these products following the previous label vacatur issued by the Court of Appeals for the Ninth Circuit in 2020. It is important to clarify this recent court ruling and label vacatur affects only three products: XtendiMax (Bayer CropScience), Engenia (BASF), and Tavium (Syngenta). All other dicamba-containing products are NOT affected by the Arizona court ruling.

Following the Arizona court ruling, EPA issued an order to allow application of existing stocks of these three dicamba-containing products previously registered for application in dicamba-resistant soybean varieties. EPA defines “existing stocks” to mean “those stocks of previously registered pesticide products that are currently in the United States and were packaged, labeled, and released for shipment prior to February 6, 2024.”

To clarify this procedural action, EPA provided the following information: “Once a pesticide product is registered, FIFRA requires the product not be used inconsistent with its labeling. If a pesticide product is cancelled by EPA or vacated by a court, the pesticide is no longer registered and use consistent with the previously approved labeling is no longer controlled under FIFRA unless EPA issues an existing stocks order pursuant to FIFRA section 6(a), which provides that: “The Administrator may permit the continued sale and use of existing stocks of a pesticide whose registration is suspended or canceled under sections 3, 4 or 6 of FIFRA to such extent, under such conditions, and for such uses as the Administrator determines that such sale or use is not inconsistent with the purposes of FIFRA.”

“This provision of FIFRA allows EPA to issue orders governing the sale, distribution, and use of existing stocks for a pesticide that has been sold with the imprimatur of a registration where that registration is cancelled. Existing stocks orders can authorize sale or distribution that would otherwise be unlawful and prohibit use that would otherwise be lawful. They can also contain limitations or conditions on the sale, distribution, or use that EPA determines are appropriate to ensure that the sale, distribution and use is not inconsistent with the purposes of FIFRA.”

The EPA order for use of exiting stocks can be found at: https://www.epa.gov/system/files/documents/2024-02/dicamba-notice-existing-stocks-order_02142024.pdf

This action by EPA will allow Illinois weed management practitioners to use existing stocks of XtendiMax, Engenia, and Tavium consistent with the previously approved labeling (including training requirements, record keeping requirements, consultation with Bulletins Live! Two, etc.) for the products. Use of existing stocks also will be governed by the additional application restrictions imposed by the state of Illinois for use during the 2023 growing season. A summary of provisions for utilization of existing stocks of these products in Illinois during the 2024 growing season appears in Table 1.

Table 1. Provisions for the utilization of existing stocks of XtendiMax, Engenia, and Tavium in Illinois during the 2024 growing season.

***Courtesy of Aaron Hager, Department of Crop Sciences University of Illinois***