A U.S. judge suggested on Wednesday that Bayer AG include a warning label on Roundup as part of a proposed $2 billion settlement to resolve future claims that the top-selling weedkiller causes cancer.
Bayer has spent years and committed $9.6 billion to resolve lawsuits alleging non-Hodgkin lymphoma is caused by Roundup, a glyphosate-based herbicide it inherited in its $63 billion acquisition of Monsanto in 2018.
The company has said that decades of studies have shown Roundup and glyphosate are safe for human use.
On Wednesday, the company was seeking preliminary approval from U.S. District Judge Vince Chhabria in San Francisco for a separate $2 billion deal to create a framework to resolve lawsuits by people who will get sick in the future.
“For years I’ve been wondering why Monsanto wouldn’t do that voluntarily to protect itself,” said Chhabria, of a warning label. He said a label would prevent lawsuits going forward and could free up money that could be used to create a better settlement offer for people already exposed.
He even suggested wording for a label and tweaked it as he got feedback from Bayer’s lawyer.
Bayer last year defeated an attempt by California to require a cancer warning label on the weedkiller, but Chhabria said the company could probably come up with a label less definitive about the link to cancer than the one sought by California.
William Hoffman, a lawyer for Bayer, said he doubted the label suggested by Chhabria would protect against future lawsuits.
The settlement would cover two types of Roundup users, those who currently have non-Hodgkin lymphoma but have not retained a lawyer, which the judge described as “class one.” The other class covers people who have been exposed to Roundup and become sick in the future.
“A settlement of this type could potentially be reasonable for class one,” said Chhabria at the start of Wednesday’s hearing.la
Chhabria acknowledged that he was more receptive to aspects of the plan than on Tuesday, when he posted questions in a court filing asking why class members would agree to the deal when jury trials have gone well against Bayer.
If the settlement gets preliminary approval, Roundup users can opt out in the coming months and retain their full legal rights. Those who become part of the class would be eligible for free medical exams and up to $200,000 if they develop non-Hodgkin lymphoma during the agreement’s four-year period.
The agreement would pause all litigation for four years and prevent class members from seeking punitive damages if they refuse compensation and ultimately decide to sue.
The stakes are high. Bayer has said that more than half of its herbicide revenue, which totaled nearly 5 billion euros ($6 billion) in 2020, was related to glyphosate.
Critics of the settlement say the proposal would unfairly limit consumers’ legal rights.
Chhabria said the biggest risk facing Roundup users who opt out was a ruling by the U.S. Supreme Court adopting Bayer’s view that a federal pesticide law barred lawsuits that the company failed to warn users about glyphosate.
Bayer has said the law has been misapplied in the three cases that went to trial, each of which resulted in tens of millions of dollars for plaintiffs.
One of those trials, a $25 million federal jury verdict against Bayer, was upheld by an appeals court on Friday.
Bayer said it will ask the U.S. Supreme Court to review the case.