A Potential Rise in Toxic Tort Litigation: Pesticide Use on Cannabis

As more states enact medicinal and adult recreational cannabis laws each year, we are likely to see growing litigation in the toxic torts arena. Health officials have warned about the potential hazards to consumers’ health from cannabis that has been treated with chemical pesticides. The risks may vary depending on how the product is consumed, whether eaten, smoked, vaped, or dermally applied.

So far, given the federal ban on marijuana, there are no pesticide products that have been approved on the federal level specific to cannabis. While states, such as California and Colorado have set forth standards and methods of acceptable and unacceptable use of pesticides on marijuana, those standards and methods are limited in their effectiveness. These include common substances like citric acid and sulfur along with biopesticides, which use living microorganisms and other natural chemicals. Due to limited options, there is concern that some growers may turn to unregistered pesticides in an effort to save their crops from pests and protect themselves from economic loss. In addition to pests, a Colorado marijuana dispensary recently voluntarily recalled in December 2018 its retail marijuana plant material over mold and yeast concerns.

Regarding pesticide use, myclobutanil, imidacloprid, abamectin, etoxazole, and spiromesifen, are pesticides found in many pest-control products, but not approved by the federal government for use for marijuana cultivation. In some states, these pesticides have reportedly been detected as residue on certain cannabis flowers and in extracts and edibles. In fact, in 2015, two large Colorado companies that produce edible marijuana products issued product recalls for over 30,000 products over concerns that they contained banned pesticides.

We anticipate that consumer class action and product liability-related lawsuits involving marijuana products will steadily increase over time. In addition, the potential for pesticide mismanagement or misapplication on crops may also lead to environmental concerns, including potential violations of environmental statutes and regulations.

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