Recent Drug Litigation—Marijuana Products

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Tammy J. Meyer

By Tammy J. Meyer

Tammy J. Meyer is a principal with the Indianapolis law firm Rocap Law Firm LLC. She focuses her practice in business litigation, drug and medical device litigation, defending premises and products liability claims, insurance coverage litigation, and providing risk management counseling to clients. She is a member of the Drug, Device and Biotechnology Committee of the International Association of Defense Counsel. She can be reached at

Until recently, the headlines may have read, “Drug Users sue Drug Dealers.” However, now that marijuana has been legalized in several states, the headlines now read, “Consumers sue growers/distributors of marijuana drug” or “Patient alleges petroleum-based fungicide contaminated his cannabis.”

Several states have legalized the use of medical marijuana. Others have now legalized the recreational use of marijuana. It is predicted that more states will follow suit in the next several years. Legal marijuana is said to be one of the fastest growing markets in the United States. As it grows, literally, products liability and other suits concerning marijuana products are starting to emerge.

In October 2015, a recreational marijuana patron, and a medical marijuana patient, of LivWell, a large Colorado chain of marijuana shops and the world's largest grower, sued LivWell claiming it used Eagle 20 (a petroleum-based fungicide) on its cannabis. The plaintiffs, who brought the suit as a class action, claimed that Eagle 20 emitted a poisonous hydrogen cyanide gas when a product with which it had been treated was burned. Although neither plaintiff claimed physical harm from the Eagle 20, both claimed that they would not have purchased the products from LivWell, and would not have inhaled them, had they known about the fungicide. They also claimed that they overpaid for the marijuana as the value of the product was diminished due to the inability to inhale it. Plaintiffs likened the case to someone purchasing a home with an undisclosed defect and later learning that the value of the property was diminished as a result. This case is believed to be the first class action, and the first product liability lawsuit, involving marijuana. Just four months after the lawsuit was filed, the judge dismissed the case finding that the consumers were not actually harmed. The judge also noted that plaintiffs were not reselling the product and there were no allegations that the product did not perform as intended. Both plaintiffs smoked the marijuana without harm.

A Closer Look at Potential Claims

As product liability suits and other suits over marijuana become more commonplace, the legal basis for the claims and theories will undoubtedly expand. Here are some areas in which you can expect to see claims:

  • Breach of Contract: Plaintiffs may claim that they have entered into sales contracts for the purchase of marijuana and that it was understood that the marijuana was safe for consumption. A breach of contract may be alleged if the manufacturer or distributor failed to disclose certain things about the marijuana, such as the application of Eagle 20 in the Colorado class action products liability suit.
  • Breach of the Implied Covenant of Good Faith and Fair Dealing: This claim was also alleged in the Colorado class action product liability lawsuit. Implied in every contract is a covenant of good faith and fair dealing. Plaintiffs claimed in the Colorado case that the defendant breached the implied covenant of good faith and fair dealing by selling the Eagle 20 contaminated product to plaintiffs, and that plaintiffs overpaid for the product.
  • Failure to Warn: Do manufacturers and distributors have a legal obligation to warn consumers of the dangers associated with marijuana? Are they required to warn of health risks? The potentially addictive nature of marijuana? What about mental health issues? What about driving or operating machinery while under the influence?


If there is a duty to warn, how specific must the warnings be? Since studies conflict over the potential health risks, what, if any, warnings should be given?

It has been suggested that manufacturers and distributors may petition Congress to pass a law concerning marijuana labeling (much like alcohol warnings). The law would mandate a particular warning label and provide a preemption clause. This could bar failure to warn claims altogether. However, the federal government would first need to legalize the use of marijuana before it attempts to regulate it.

  • Negligence: Do manufacturers and distributors owe consumers a duty to determine if marijuana poses health risks? If so, how do manufacturers and distributors discharge that duty? Do they conduct testing? Do they create focus groups?
  • Design Defect: The THC in marijuana is sometimes altered or enhanced. However, doing so may lead to design defect claims. Some may claim that the marijuana was defective because certain properties were removed which increased the risk of cancer. Others may claim that the altered THC caused the marijuana to be more addictive because of the alleged design defect.
  • Warranty Claims: In medical marijuana cases, some consumers may allege that they believed that the marijuana had medical benefits. Certain advertisements may be shown to support such claims, even outside of the medical marijuana area. Patients or consumers may allege breach of express or implied warranties. Manufacturers and distributors may want to specifically disclaim such warranties.
  • Intentional Misrepresentation/Concealment of Material Facts: In the Colorado class action products liability case, the medical marijuana plaintiffs claimed that in marketing materials the defendant represented that the marijuana was of medicinal quality, was of a higher quality that other marijuana, and was considered medical marijuana. Plaintiffs claimed that those representations were false as the product had actually been treated with a fungicide. The recreational use plaintiffs also claimed that material facts were concealed, namely the use of the fungicide on the product and the results of tests performed on the plants.
  • Youth Marketing: States that have legalized marijuana, place age restrictions on usage, just like alcohol or tobacco usage. Many ban marketing that appeals to those under age. Some may claim that they have become addicted to marijuana because they started using at a young age. They may further claim that they started using at a young age because of the advertising. These claims may carry more weight if the individual claims that they were drawn to use marijuana contained in products such as gummy bears or other products that are particularly appealing to those under age.
  • Unjust Enrichment: Plaintiffs in the Colorado case also alleged unjust enrichment, restitution and disgorgement claiming that defendants obtained money from plaintiffs under circumstances that were unfair, immoral, and contrary to public and basic notions of justice and fairness. They claimed that because defendants placed an unreasonably dangerous product into the market, it would be unjust to allow defendants to profit from such.
  • Civil Conspiracy: The final count of the Colorado complaint contained a claim of civil conspiracy alleging that the defendants aided each other, through misrepresentations and concealments, in marketing and selling a product that had been treated with Eagle 20 as safe for consumption.



It is believed that as the marijuana industry grows, it is doing so at such a rate that it is often outpacing the laws regulating the industry and the application of other laws to the industry. There are constantly new grow operations, new dispensaries and retail outlets, new products, new strains of marijuana, new forms of the drug, and new ways to market it.

The industry has been compared to the tech startups in Silicon Valley years ago. However, since the industry is still considered illegal by the federal government, there are no federal guidelines in place or even in the pipeline.

There are no federal government standards upon which to rely. Instead, each state that legalizes marijuana, has its own sets of laws that apply to the industry. Even then, the industry has undergone unprecedented and rapid growth, and the law is having a difficult time keeping up with the emerging issues. You can expect to see not only more laws governing the marijuana industry, but more lawsuit concerning marijuana products. With these lawsuits will come creative and unique theories and claims against the industry. This is definitely a growing industry and an emerging area of the law.

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