Product Liability and the Marijuana Industry

It’s the growing season for recalls, lawsuits

As we predicted in an earlier blog post, the young marijuana industry is experiencing legal growing pains.

Only a handful of states have legalized the growing, sale and use of marijuana for recreational purposes. Medicinal marijuana is legal in 24 states. Federal laws, however, banning it in all forms are still in effect, if only on paper. And there’s the rub.

Consumers, who easily circumvent federal laws regarding use and distribution of the drug, are hampered by the lack of federal product safety regulations. And how can consumers count on the product they purchase being safe if there are no government guidelines, as is the case for food, toys, cars and everything else? So it goes without saying that a product liability case will result if an end user becomes sick or is harmed from using the product. And it it’s also likely that the grower, the distributor and the retailer will all be involved.

The root of the problem

Which is what sparked the the first marijuana class action lawsuit in October, 2015. Two medicinal pot users learned that the fungicide Eagle 20 was sprayed on the plants they consumed. Poisonous hydrogen cyanide is released when Eagle 20 is burned. The lawsuit suit was dismissed for “failure to allege a cognizable injury.” However, it stands to reason there will be an increase in litigation industry wide with regard to illegal pesticides.

Results of recent investigations

The use by marijuana growers of dangerous pesticides has resulted in investigations by state environmental regulators.  Last fall, Colorado proposed stricter rules for the use of pesticides and both Oregon and Washington issued lists of pesticides specifically approved safe for use on cannabis.  And after an investigation into the use of banned pesticides, the Washington State Liquor and Cannabis Board (WSLCB) fined two of the largest cannabis producers in the state $2500 and issued each a 10-day suspension.

Various cannabis products have been recalled in both Washington and Colorado in recent months. The lack of safety regulations means growers themselves have to take on the responsibility of determining whether to issue a voluntary recall in an attempt to minimize any exposure to liability.

If you’re involved in the marijuana industry, click here for our suggestions on setting up a recall policy which can minimize the risk of a lawsuit.

Source: Alexis Kellert, “Young Marijuana Industry Provides Helpful Case Study.” www.lexicology.com. 09 March, 2016.