Seyfarth Synopsis: Marijuana businesses must properly label their products if they contain chemicals that can cause cancer, birth defects, or other reproductive health problems.  Failure to do so will result in a civil penalty or civil lawsuit.

Entrepreneurial Plaintiff’s attorneys have now set their sites on marijuana businesses.  Since January 1, 2017, Plaintiff’s firms have issued approximately 800 violation notice letters to marijuana businesses alleging that producers of cannabis infused edibles and vape cartridge manufacturers failed to warn consumers about specific fungicides and pesticides associated with their products.

California’s Proposition 65, or the Safe Drinking Water and Toxic Enforcement Act of 1986, requires cannabis business owners to provide customers with warning of the chemicals contained in their products which can cause cancer, birth defects, and other health problems.  Among the substances “known to the state of California” to cause cancer, birth defects and other health problems are marijuana smoke itself, and the chemicals myclobutanil (also a fungicide), carbaryl, and malathion, commonly-used pesticides.
Continue Reading Beware: Marijuana Businesses Targeted With Product Labeling Violation Letters

With Pennsylvania joining in last month, nearly half the country has laws permitting state residents to use marijuana for medical purposes, and a handful even permit recreational use. California led the movement when it passed the so-called “Compassionate Use Act” in 1996. At present, use and distribution of marijuana remain federal offenses, although unenforced per current U.S. Department of Justice policy.

The increasing accessibility of marijuana over the years, as well as its acceptance into mainstream culture, have led to serious misconceptions regarding its permissibility in the workplace. We offer here a few reminders to help clear up this this sometimes “hazy” area of California law.
Continue Reading A “Hotbox” Of Legal Issues: California’s Workplace Marijuana Laws

Infestation by mildew, parasites, fungus, mites, bacteria, powdery mildew and other biological agents can spell disaster for a cannabis crop. Unchecked, an infestation can destroy an entire grow room worth of crops. With each crop representing thousands of dollars of investment, it is understandable that many marijuana entrepreneurs will use any means available to save an at-risk crop, including dousing it with gratuitous amounts of chemicals to kill invading organisms. Although using pesticides in such cases might seem like a sound business decision, it could actually open the doors for lawsuits and unwanted regulatory attention.  Oregon politicians Andy Olson and Jeff Barker, state in their opinion piece, “Marijuana Regulations Must Cover Pesticide Use”, that people who use medicinal marijuana may already have compromised immune systems and are those least able to bear exposure to a tainted product.  Additionally, as with any other product, anyone in the product’s chain of distribution (including marijuana growers, processors and retailers) can be held liable for a defective product under products liability law, as described in Alison Malsbury’s article, “Inaccurate Marijuana Testing Will Lead to Lawsuits.”  Given that marijuana is consumed through edibles, by smoking and even through topical application to the skin, there are a number of ways that unregulated pesticide use may put consumers at risk.

As further proof that these concerns are more than merely hypothetical, on April 24, 2015, officials from the City of Denver’s Department of Environmental Health quarantined 60,000 plants produced by LivWell, Inc., a Colorado-based grower with 2015 revenues projected to exceed $80 million (“LivWell”). The plants were tested by a state-licensed lab and found to be acceptable within the limits for vegetation and officials eventually released them to LivWell to sell. Nonetheless, on October 6, 2015, two Colorado marijuana users (one of whom has a brain tumor) recently sued LivWell for unspecified damages, claiming, that Eagle 20, a fungicide that the LivWell used, was “patently dangerous” when used on a product that is likely to be consumed through heating and combustion.  In the complaint (full text here) the plaintiffs reference the fact that Eagle 20 has not been approved for use with tobacco products.  The plaintiffs, neither of whom allege that they were sickened by ingesting the marijuana, seek class action status and relief based on LivWell’s use of Eagle 20 and failure to disclose its use to consumers as violations of common law.  This case is the first marijuana product liability claim in the U.S. since marijuana has been legalized.
Continue Reading EPA Offers Guidance to States for Use of Pesticide on Marijuana