A farmer who asked if he was off the hook if he followed all herbicide label directions and product still drifted didn’t like the answer. For all practical purposes, he would still be liable — and perhaps even in violation of the label — if drift occurred and caused damage.
That begs another question. If you’re going to be liable whether you follow the label or not, then why worry about the label?
It’s a matter of stewardship and doing all you can to prevent drift, Fred Whitford says. He is the director of Purdue University Pesticide Programs.
“If you follow the label the best that you can, and make an honest effort to do so, you’re going to be in a better position if there is drift that causes damage to someone’s property than if you just ignore the label,” Whitford says. If drift occurs and causes damage, you want as many things going in your favor as possible, he adds.
Dave Scott, pesticide administrator with the Office of the Indiana State Chemist, agrees with Whitford.
Scott adds, “The label is the law, but based on label variability, it’s important to know exactly what each label actually says about drift.”
Following the label won’t guarantee that drift won’t occur or that you won’t be held responsible, but it does demonstrate good faith and will likely be taken into account when the incident is investigated.
“If you go out and spray in 20-mile-per-hour winds when you know the label specifies much lower maximum wind speed, for example, and do other things which are restricted according to the label, no one is going to have any sympathy for you if things go wrong,” Scott notes. “If you did what you could to follow the label and have records to prove it, that will likely be taken into account.”
Do the right thing
Technically, you can follow design standards on a label and still violate the label. Design standards are things like maximum wind speed listed on a label, Scott notes. If the label also includes performance standards that basically say: "Don’t allow drift that damages anything off-target," then once drift occurs, you have violated the label.
Even if the label doesn’t list a performance standard, Indiana law states that an applicator shall not cause drift that causes damage to off-target crops or property, Scott continues. “If there’s a complaint and OISC gets involved, we sometimes have to fall back on that law,” he notes. “It was written to include that there must be damage, because it’s virtually impossible to achieve zero drift.”
OISC typically gets involved if someone files a complaint. All complaints are investigated. “If you followed the label, and then if you’re trying to do the right thing, we’re going to take that into account,” he says.
That doesn’t mean you won’t get off without a possible violation, but it means you have some things going in your favor. "Doing the right thing" includes trying to work out the situation with your neighbor whose crops or plants were injured, Scott says.
However, Scott makes an important distinction. OISC is responsible for enforcing the law. It doesn’t get involved in litigation of any type. It’s up to the person whose property was damaged to pursue restitution, not OISC, he emphasizes. OISC final reports could be used by a neighbor or his or her attorney, but OISC will not get involved directly in liability cases.
“Just do all you can to avoid drift in the first place,” Whitford emphasizes.