Colorado Court Considers First Cannabis Product Liability Lawsuit

While a number of states are moving to legalize the use of cannabis, manufacturers of products containing marijuana may not be entirely clear when it comes to understanding how product liability rules will apply to them. In the recent case of Flores v. LivWell, Inc., two marijuana consumers sued the defendant, claiming that a fungicide known as Eagle 20, a petroleum-based product, was used during the marijuana growing process. The plaintiffs sought to certify a class action against the Colorado-based defendant, one of the largest producers of cannabis in the state.

The plaintiffs alleged specifically that the company used Eagle 20 without adequately warning consumers of the potential side effects and dangers associated with the insecticide. According to their complaint, however, neither of the two plaintiffs alleged that they became ill or experienced any of the potential side effects after ingesting cannabis products they purchased from the defendant.

Eagle 20 is a controversial substance, especially when it comes to cannabis cultivation. The product is used to kill pests and mites that destroy crops. One of the main ingredients in the product is Myclobutanil, which breaks down into hydrogen cyanide–a poison–when subjected to heat. The product is permitted for use in vegetation that will not ultimately be inhaled. As a result, the Colorado Department of Agriculture has banned the use of Eagle 20 for tobacco crops because the end use for tobacco and similar plants is inhalation.

The plaintiffs alleged in their complaint that, had they known the defendant used Eagle 20 in its cannabis cultivation practices, they would not have purchased the defendant’s products.

In April 2015, the Denver Department of Environmental Health asserted a hold on several thousand marijuana plants, including roughly 60,000 of the defendant’s plants. According to the Department of Environmental Health, the hold was implemented over concerns about the dangerous side effects of pesticides like Eagle 20. After testing many of the plants for pesticide residue according to the state’s acceptable limits for vegetation, the Department of Environmental Health removed the hold and returned the defendant’s plants, finding that the plants tested within the acceptable limits.

Anticipating the defendant’s reliance on this testing, the plaintiffs contend that even though the plants were within Colorado’s acceptable limits, the plants did not test within the appropriate limits for tobacco and other plants that are ultimately intended to be inhaled.

This case is the first of its kind for Colorado, the state that has been leading the pack when it comes to decriminalizing marijuana use for medicinal and recreational purposes. The case raises a number of novel issues about the duty of a cannabis cultivator to warn its customers about possible harms. The case also highlights many of the difficulties that the rapidly expanding cannabis industry faces, including a lack of an existing regulatory framework. This action will be highly monitored by other cannabis product providers and other industry stakeholders.

If you or someone you love has been injured due to a dangerous or defective product, you may be entitled to compensation. At Moll Law Group, our team of experienced and dedicated product liability lawyers know how devastating and unexpected suffering a product-related injury can be. We have represented numerous product liability victims throughout the nation, including in California and Florida. Call us now at 312-462-1700 or contact us online to set up your free consultation.

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