On Dec. 13, Bader Farms, Inc., a large-scale peach grower, brought suit against Monsanto Company for damage to 30,000 of its peach trees allegedly caused by dicamba (brand name Xtend) spray drift from neighboring farms. This case is one example in a growing number of cases alleging that other crops, pollinators and the environment were damaged by spray drift of crop protection products.

The question in the Bader Farms litigation will be whether a seed and herbicide manufacturer can be held liable for spray drift caused by illegal use of the relevant crop protection product.

Dicamba is a broad-spectrum herbicide that targets broad-leaf plants, and it has shown promise in controlling difficult-to-control weeds. Monsanto developed and marketed seeds containing a dicamba-resistant trait in 2015 and 2016. However, dicamba itself was not granted a registration for over-the-top use in crops during that time period.

Because dicamba was not yet registered for in-crop use, any over-the-top use of the product (even on dicamba-resistant crops) during 2015 and 2016 was in violation of federal and state law. Bader Farms’ claim rests on the theory that Monsanto knowingly marketed dicamba-resistant cotton and soybean seed to customers in 2015 and 2016, despite the fact that dicamba was not yet approved for use on the crops. Bader Farms’ argues that the illegal use of dicamba was inevitable, given an outbreak of herbicide-resistant weeds and the fact that Monsanto marketed the dicamba-resistant seed, but failed to market an effective, registered herbicide for use on the crops. In the absence of an alternative, Bader Farms alleges, local farmers turned to older, unregistered versions of dicamba, resulting in the spray drift that damaged Bader Farms’ orchards.

Monsanto issued a statement in response to the complaint arguing that responsibility for the illegal use of crop protection products properly lies with the user, not the manufacturer. Further, Monsanto stated that it did not charge a premium for the dicamba-resistance trait due to the lack of registration for dicamba and that it took steps to remind growers that dicamba was not approved for on-crop use.

Given the early stage of the litigation, it is difficult to tell whether Bader Farms’ claim will be successful, but its relevance to spray drift litigation makes it a case to watch in 2017.