The Product Safety & Liability Reporter™ provides updates on significant developments and issues in product safety and liability litigation and regulation, plus analysis from top litigators. Get...
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 firstname.lastname@example.org.
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.
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:
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.
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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