Cropping for Carbon, Perplexing Dicamba Labels & Other Legal News
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Cropping for Carbon
Capturing carbon on the farm may be the biggest buzz in agriculture, and all sorts of programs are being launched to help producers reap a financial benefit for “climate-smart” practices. With the sheer scale of US crop production, farms represent a significant market for sequestering carbon and reducing carbon emissions. Many companies have launched carbon programs for farmers, including Indigo Ag, BASF, Bayer, and Land O’Lakes’ Truterra, to name just a few. As these programs proliferate, so does the confusion as farmers try to sort through an ever-increasing array of offerings and requirements for participation.
Growers should carefully study how a carbon program will work on their individual operations and how the benefits will be distributed when deciding how to enter the market. We recently provided a list of top-level issues that producers should consider before entering into one of the various carbon programs being offered – read more here.
EPA considering more changes to Dicamba labels
The EPA is considering yet another round of modifications to dicamba herbicide labels in response to 5 continuous years of widespread off-target damage. The 2021 season saw hundreds of damage reports in several States despite labeling changes in 2020 which were intended to eliminate the herbicide’s volatile tendencies to keep it from migrating to areas where it injured or killed sensitive vegetation. DTN recently reported that EPA has even questioned its ability to continue to defend lawsuits by environmental groups claiming that dicamba registrations pose an unacceptable risk to the environment an endangered species. As of yet, the EPA has not given a timeline for making a decision on additional label modifications.
Minnesota is not waiting for the EPA and has moved forward with its own dicamba label changes which include earlier application cutoff dates and temperature limitations.
ASTA’s 2021 Seed Expo
Last week we attended the 2021 Seed Expo by the American Seed Trade Association, the largest seed industry conference in the country. The Expo provided three and a half days of industry insights, policy, and education for seed professionals focused in the major crops of corn, soybeans, sorghum, and wheat. A regular highlight of the conference is Dan Basse’s report on the agricultural economy and where economic trends are headed. This year, Dan posed the question of whether the U.S. had reached “peak farmland,” observing that there may not be a significant amount of land left that would be suitable to pull into crop production.
Cape Law Firm’s Frequently (or Randomly) Asked Questions
“When a seed trait goes off-patent, can I keep selling generic versions of it?”
A simple question, but not necessarily a simple answer. Modern seed traits often involve a patented DNA construct that imparts a trait to crops. As the industry enters an era where those patents are expiring, they should theoretically be available for anyone to use and sell. However, owners of these expiring patents may anticipate the impact to their market and take steps to eliminate seed supplies containing the trait before expiration. Since the trait is delivered through the seed’s genetic make-up, generic versions may be unavailable when the patent expires. Likewise, the varietal genetics themselves (i.e., the genetic make-up without the trait) may be patented separately and keep a variety protected until it also expires. It may be possible to access an off-patent trait via a seed depository, but that route may require the using the trait in a multi-year breeding program in order to develop generic varieties. There may also be regulatory registrations which require data upkeep and support. Thus, the ability to offer generic seed traits can be significantly impacted by the owner of the expired patent.