Illinois Fertilizer & Chemical Association
Supply · Service · Stewardship

Dicamba Use Right Now: Truth, Rumors, Your Risk

IFCA wants our members to know that we are very concerned and disagree with what occurred with the US federal court ruling that vacated the Xtendimax, Engenia and FeXapan labels on June 3.  We do not support the ruling and the disruption it has caused.  But your Association's mission is to provide factual information to our members based on what we know, so that you can make informed business decisions. 
This is what we know.  Right now in most of Illinois it is too hot (or windy) to spray any dicamba on soybean (i.e. no application with a forecast high above 85 degrees).  This includes Tavium which is still legal for use in Illinois.  With rain also in the forecast, perhaps we have a few days for this issue to evolve before cooler temps arrive later this week.  Here is what we know to be true, and you can decide as a business what to do and what to tell your growers based on these facts.  
1.  The US federal court ordered the labels vacated on June 3, 2020 and also issued an immediate enforcement order to that effect.  Unless an emergency stay of the order is sought by the US Justice Department and the emergency stay granted, that order remains in effect.  There are efforts underway from many groups and USEPA is exploring legal options but as of today, no relief has been granted at the judicial level.  The court order remains in effect.  

2.  The Illinois Pesticide Act and the Illinois Pesticide Regulations require that the Department may only register products for use in Illinois that are also federally registered.  The USEPA registration for these products were vacated by the federal court, effective June 3.  Not all states have regulations as clear as Illinois does, hence their determinations that these products can continue to be used until they get a clear cancellation order from USEPA, rather than from the court.   Surrounding states that continue to alllow use is frustrating to us in Illinois, but even ARA advised retailers to cease using these products until the registrants advise it is legal to do so because of the federal ramifications.   

Here is what the Illinois regulations state:

Title 8, Chapter I, Subchapter i, Part 250 Illinois Pesticide Act:

Section 250.30:  Registration of Pesticides

Except as otherwise provided by the Act or specified by rules promulgated thereunder, any pesticide which is an USEPA registered product may be registered with the Director. Any pesticide distributed, sold, transported or used within Illinois shall be registered with the Director on designated forms available from the Director. Registration of pesticides shall be in accordance with Section 6 of the Act.
IFCA assures you that in our conversations with the IL Dept of Ag, they are not happy about this either.  But they must uphold the law and their interpretation is that the registrations at the federal level no longer exist, thus they cannot exist at the state level.  IDA Acting Director Jerry Costello sent a letter to USEPA Administrator Wheeler on June 5 asking for USEPA to immediately provide more clarity to the states.  USEPA only issued a short statement late on June 5 saying they do not agree with the ruling and know it is detrimental to the ag industry, and they are seeking other remedies.  But as of today, no other remedies have been announced by USEPA.  Those in DC close to this issue, including those who give advice to the Ag Retailers Association, believe that an immediate remedy to this situation is going to be difficult and likely not timely.  We hope otherwise, but this is what we have been told.  

IDA issued this statement on their website on June 5:  Pursuant to FIFRA, all pesticides sold, used or distributed in the United States must be registered with the USEPA.  Therefore, effective June 3, 2020, based on the Ninth Circuit's ruling, Xtendimax, FeXapan, and Engenia cannot be sold, used or distributed as their registrations have been vacated.  While the Department has the authority to regulate the sale and use of pesticides within the State, it cannot permit any sale or use without a valid FIFRA registration.  The Department acknowledges and is sympathetic to the challenges that the Court's decision will pose to the industry.  

3.  IFCA spoke again this morning (June 8) with IDA management.  Nothing has changed since last Friday and their interpretation of the situation has not changed.  Therefore, at this point in time, the sale, distribution and use (application) of these 3 products in Illinois is not allowed by the Illinois Pesticide Act.  We realize that IFCA is among the few ag organizations informing people of the IDA statement, but it is a fact and you deserve to know the good, the bad and the ugly.   

4.  For ag retailers, we know this up-ends your commercial application plans and Xtend growers are upset with the loss of legal use of these products on their soybean crop.  Rumors are rampant that something is going to change this week.  Maybe something will change and if that happens word will travel fast and IFCA will let you know what any potential changes mean.  

5.  For our members in Illinois, we advise you to weigh the risks of continuing the sale, distribution or commercial application of these products.  Using these products after June 3 is technically not allowed in Illinois.  If someone files a misuse complaint and IDA investigates, the product and date of application is required on the record.  Falsifying or failing to keep records of an application is an even more serious violation of the Illinois Pesticide Act; knowingly providing false information to IDA is yet another offense.  All of these are serious.  

6.  Finally, as a business we advise you to investigate with your insurance provider what protection they can or can't provide to you if there is a sale, distribution or use of the 3 dicamba products that results in some kind of misuse finding or claim against your business.  IDA will investigate misuse; those cases and findings are subject to the Freedom of Information Act.  While IDA penalties are serious, many times these things end up in civil court and thus the liability for the ag retailers is very concerning.  The registrants stopped sale of these products immediately after the court ruling.

We understand your frustration.  Many options are being explored at very high levels.  Feel free to contact me at (309) 826-3236 with questions or