Bayer and BASF Seek To Dismiss Claims That Their Dicamba Herbicides Hurt Honey Farm

Agrochemical giants Bayer and BASF asked the Eastern District of Missouri on Wednesday to dismiss allegations against them from Coy’s Honey Farm Inc. that their dicamba-based herbicides and associated seeds are killing bees and reducing profit for the honey farms because the chemicals are damaging vegetation around the fields where it is applied. 

Coy’s Honey Farm filed its initial complaint in May, the present filing addressed the plaintiffs’ first amended complaint.  The plaintiff alleged that both XtendiMax Herbicide and Engenia have been used extensively on 4 million acres of farmland in Arkansas, and have negatively impacted its bees which pollinate nearby fields, causing them to produce less honey. He claimed that the dicamba systems will in the future fill fields with genetically modified crops, and damage all plants that are not in the field causing harm to birds, insects, and others relying on those nearby plants. 

In their opposition, Bayer and BASF claimed that the plaintiff lacked standing for its Lanham Act claim and did not state a claim for relief. In response to some claims the defendants purported that the plaintiff had not given pre-suit notice, did not claim the defendants owned or used land in Arkansas, or were untimely since the plaintiff knew of its alleged injuries in 2017. Additionally the defendants alleged that they are not liable for trespass of the product after they sell it and that as product manufacturers they are not liable for the alleged hazardous application of the herbicide. 

The defendants in their memorandum said that the plaintiffs’ claims are not new and that the court has previously dismissed similar claims. However, they alleged that these claims are less supported than others because they occurred on property owned by others. 

“As compared to the typical off-target movement lawsuit, Plaintiff’s alleged injuries are even more attenuated. Plaintiff does not claim that off-target herbicide movement injured its crops, plants, or other vegetation. … Plaintiff’s claims are multiple layers removed from the manufacture, advertising, sale, or use of XtendiMax or Engenia than the typical plaintiff,” the memorandum said. 

The agriculture companies purported that the labels and registrations of XtendiMax and Engenia are regulated and approved by the Federal Insecticide, Fungicide and Rodenticide Act, and so claims regarding the labels should be dismissed. Also, ad the state level, the chemicals are regulated by the Arkansas State Plant Board. 

BASF is represented by Faegre Drinker Biddle & Reath LLP and Bayer is represented by Thompson Coburn LLP. Coy’s Honey Farm is represented by Richard Mays Law Firm PLLC