There are no federal regulations on the use of pesticides on marijuana plants because it is still considered to be an illegal crop at the federal level; however Colorado authorities did release a list of approved treatments, with Eagle 20 not being on the approved list. Flores justified filing the suit by saying, “I want these companies to take a step back and look at what they are putting into their products. These warehouses are getting big and really sloppy. They are adding chemicals to make things more efficient and more potent.
In what could be considered either a sign of a maturing industry, or an indication that the business of legalized marijuana is outpacing its regulation, the first product liability lawsuit in the industry’s history was filed earlier this week in the Denver District of Colorado State Court. Two marijuana users, Brandan Flores, who uses marijuana as a natural medication for chronic back pain, and Brandie Larrabee, a brain tumor patient, filed the suit against Colorado’s largest marijuana provider LivWell Inc. The company owns nine marijuana dispensaries in the state, as well as one of the largest grow-houses in the world. The plaintiffs are suing due to the company’s use of a fungicide called Eagle 20, which is used to ward off mites and other pests that can threaten the plants. The chemical contained in Eagle 20, myclobutanil, produces hydrogen cyanide gas when burned.
Eagle 20 is commonly used on grapes for similar reasons, although it banned for use on tobacco due to the release of myclobutanil. There are no federal regulations on the use of pesticides on marijuana plants because it is still considered to be an illegal crop at the federal level; however Colorado authorities did release a list of approved treatments, with Eagle 20 not being on the approved list. Flores justified filing the suit by saying, “I want these companies to take a step back and look at what they are putting into their products. These warehouses are getting big and really sloppy. They are adding chemicals to make things more efficient and more potent. But there are so many chemicals now that you might as well get prescription medication.” The plaintiff’s lawyer Steven Woodrow concurred, adding “The case is all about making sure that the cannabis industry is safe for consumers,” adding that “Myclobutanil is not on any product you will consume through inhalation. On a grape it doesn’t break down into cyanide.” LivWell’s attorney Dean Heizer refused to comment on the lawsuit.
Saying that “The case is all about making sure that the cannabis industry is safe for consumers,” Woodrow is seeking additional plaintiffs to be considered for class-action litigation. Seeing the court system as a way of reigning in the growth of an industry that is outpacing regulators, Woodrow added, “Unless the industry cleans itself up, we can expect more lawsuits like this in the future.” Comparing it to Silicon Valley in the late 1990s, Woodrow said, “We have a burgeoning industry that is growing on a scale never attempted before. They are growing hundreds of thousands of plants indoors under lights, and now they are seeing spidery mites, fungus and other plant diseases they fear will wipe out millions of dollars of profit.” LivWell was one of ten marijuana producers whose plants were quarantined in March and April by the Denver Department of Environmental Health over the use of the substance, with the largest portion, 60,000 of the 100,000 plants quarantined, coming from the company. The hold on the plants was lifted after authorities discovered only trace amounts of the pesticide on the plants. LivWell owner John Lord said earlier this year that the lifting of the quarantine “showed that our products are safe — as we always maintained.” Still, Heizer did previously tell the Associated Press that the company has stopped using Eagle 20 on its plants.
Seattle-based product liability attorney Alison Malsbury, who has reviewed product liability in the marijuana industry, believes that the Colorado suit may be a sign of things to come, saying “I think we’re going to be seeing a lot of similar lawsuits in other states.” Malsbury cites the suit as the impetus for authorities in the four states that have legalized marijuana, and especially California, which will likely legalize it in 2016, to put more effort into regulating the industry. California, which already has legal medical marijuana, has no regulations at all. Malsbury said, “States need to develop comprehensive lab-testing requirements and guidelines about what pesticides are OK to use on this product. It’s going to be treated no differently than food or beverages. We’re not there yet. But it’s headed that way.” The state of Colorado is trying to grasp hold of the issue, presenting a proposal last week that would limit the number of allowable pesticides from 200 to 75, although the Environmental Protection Agency refused to add guidance for the measure due to the federal/state divide on legalization.
Denver Post – David Migoya and Ricardo Baca
Los Angeles Times – David Kelly
Seattle Times – Kristen Wyatt