Legal Weed and Lawsuits: what marijuana decriminalization means for PI attorneys
We’re at 23 states and the District of Columbia, and counting. Even in stodgy and stone-cold-sober Utah a bill legalizing some form of medical marijuana nearly passed this week. Though there are fierce political holdouts, plenty of Committees of Concerned Parents, and sufficiently roused hellfire-fearing congregants, the trend is clear: legal weed is rooting in, and blooming.
As the nation shrugs and concedes this pretty plant ain’t so wicked after all, the market morphs. That shifty drug-dealer? She’s now a respectable pharmaceutical supplier, and those erstwhile-felonious stoners are her honored clientele. And the attorneys who represent individual clients and consumers — what does this change mean to them?
The question is crucial now because pot’s make-over from devil-plant to mellow medicine isn’t going smoothly. This rising green tide has its eddies and flurries and backwaters. Here’s the biggest kerfuffle: whatever a state may do, marijuana is still illegal at the federal level. Illegal in a big way — she’s a Schedule 1 drug, a designation reserved for the very worst offenders, which have a high risk of dependency and no redeeming medical potential. According to the Feds, ganja’s on par with heroin, worse even than cocaine and meth.
The upshot is that any system of marijuana regulation is scattershot. Federal regulators typically have an opinion about producing, recommending, distributing, purchasing, and using psychotropic substances — but here they’re basically forbidden from having an opinion. In their absence, each individual state crafts its own hodge-podge of rules and guidance. Legal and medical scholar Peter Cohen isn’t impressed with the results:
[I]n the absence of federal evaluation and regulation, individual states have taken the initiative in legalizing the medical use of marijuana. In doing so, however, they have created what is essentially a regulatory vacuum.
Meanwhile the American Medical Association laments (to the background noise of a hundred medical professionals tearing out their own hair):
The patchwork of state-based systems that have been established for ‘medical marijuana’ is woefully inadequate in establishing even rudimentary safeguards that normally would be applied to the appropriate clinical use of psychoactive substances.
And these woeful inadequacies likely won’t shape up in the near future. In addition to the whole question of national political will, there could be strategy in this regulatory mayhem. Ohio State Law professor Doug Berman suspects a method to the madness: as long as the rules are constantly shifting and uncertain, “[y]ou’re not going to get the tobacco industry coming in and commercializing this. [. . .] You’re not going to get alcohol industry taking a chance while there’s still all this legal uncertainty.” In other words: the legal weirdness keeps the industry small, and gives policy-makers a bit of breathing-space.
But this means those of us celebrating our new-found freedom in the Wild West of Weed might also lack some basic regulatory protections. If marijuana users suffer damages in some way, what recourse do they have but a lawsuit?
Enter the attorneys. Below are four areas in this brave new legal landscape which lawyers should be watching:
1. Consumer Health: growing the green through chemical warfare?
While your mother was afraid that Reefer Madness would do you in, some believe what she really should have worried over is whatever growers have sprayed on its surface. In order to meet unprecedented demand in legal-weed states, production is ramping up in a big way. Warehouse space for indoor growing has become a precious commodity, with landlords in Denver charging upwards of $17 per square foot. This means that any space a grower gets will be crammed with as many cannabis plants as will fit. And from there it’s basically like an apocalyptic film about outbreaks and plagues — one plant gets a whiff of mildew or mites and soon the whole building is wilting. Losing even a small room of plants can mean watching a million dollars in revenue being gobbled up by pests.
What’s a weed-farmer to do? Spray, baby, spray. They keep their cash crop alive through the miracle of science — concocting deadly pesticides. But since pot’s such a no-no federally, the EPA can’t regulate what those pesticides are (nor can the USDA register some growers as organic). Not a single pesticide has gone through the EPA risk-assessment process for use on marijuana. States are scrambling to cook up their own rules, and the EPA is figuring out a ‘special-needs’ workaround, but there is a steady level of friction between growers who want the ability to use the heavy guns and consumers who don’t want those heavy guns down in their lungs.
And according to some, a good deal of damage has already been done. Legal pot has faced the true coming-of-age ceremony for any debutante industry: the First Class Action Lawsuit.
Naturally, marijuana’s first class action lawsuit is happening in Colorado. It centers around a nasty fungicide used by LivWell Enlightened Health, Inc., the state’s largest pot grower, which is estimated to have earned revenue over $80 million last year. During that same time, the Denver Department of Environmental Health quarantined thousands of their plants after learning they had been sprayed with Eagle 20, which is a fungus-killer used on ornamentals, turf, vegetables and fruits. The stuff isn’t approved for use on tobacco, because when you put a lighter up to Eagle 20, the heat mutates it into hydrogen cyanide, a gas so toxic it was the go-to massacre weapon in German extermination camps.
So everyone breathed a sigh of relief when the Denver Department of Environmental Health didn’t find Eagle 20 residue on the surface of the plants. LivWell got its plants back and went about their business, allegedly selling buds from those plants to smokers for both medicine and recreation.
But last October, Plaintiffs Brandon Flores and Brandie Larrabee (a medical-card holder with a brain tumor) claim Denver’s response wasn’t nearly rigorous enough. Eagle 20 doesn’t just hang out on the surface of the leaf — according to the complaint, it’s a “systemic anti-fungal agent” — meaning the plant slurps it up deep into its innermost stem-parts and holds onto it for around 100-300 days. So even with a clean leaf-surface, those buds were passing on something more sinister than good vibrations to the thousands of people who smoked them.
Steven Woodrow, one of the attorneys on the complaint, says “Companies aren’t allowed to put dangerous chemicals into the stream of commerce and then make misinformed comments to the public that they are safe for consumption.” Though LivWell has pointed to the use of Eagle 20 in other food products, Woodrow counters: “On a grape it doesn’t break down into cyanide.”
The lawsuit wasn’t a typical personal injury claim, since the entire process is too new for most health problems to crop up. Rather, the list of grievances centered around the idea that toxic weed was a breach of contract, violating the ‘implied warranty of merchantability’ by offering goods that didn’t meet consumers’ reasonable expectations that they would be fit for normal use. The Plaintiffs were paying to smoke something that, turns out, wasn’t fit for smoking — that means they overpaid, and demand compensation.
But just last month the case was dismissed on the grounds that the Plaintiffs couldn’t prove they had suffered an injury. How can you claim the product was defective, asked the Court, when it seems you smoked it and it worked perfectly fine for you?
Attorney Rob Corry is considering whether to appeal or amend the complaint, and other attorneys are watching, because this issue is much larger than LivWell. The same investigation that got LivWell in trouble also confiscated plants from nine other growers. The Denver Post showed that even months after the confiscation, those same companies still had plants with shockingly high levels of toxic chemicals. Investigative journalists continue to expose bad pesticide behavior in Oregon and Colorado. We’ve recently seen a new spate of pesticide scares and recalls. Meanwhile, even when states mandate testing for pesticide residues, the law isn’t enforced due to the scarcity of labs certified to do that kind of analysis. And to make all of it shadier, new evidence is suggesting that the cannabis industry in Colorado is interfering with State attempts to regulate pesticide use — cynically dissuading regulators from establishing consumer protections.
With all this afoot, the LivWell lawsuit surely won’t be the last. Some firms estimate that the number of plaintiffs involved could eventually reach into the thousands. It will be worth watching to see what arguments can be made in diverse jurisdictions — and however the breach-of-contract attempts go, we’ll likely be seeing a spate of higher-stake class-action lawsuits down the pike, once people can point to concrete side effects from legal pot’s pesticides.
What about lawsuits targeting the makers of the substances wrecking the health of marijuana users? Eagle 20, for instance, is made by Dow Chemical Company. But in the lawsuit described above, Plaintiffs have said they aren’t suing Dow because the “product wasn’t used as intended.” As long as the federal government stays out of the business of regulating mary-jane, chemical companies will likely shy away from promoting their products specifically for cannabis-growing, making them difficult targets for lawsuits.
One counter-example came out last month, when an Oregon man filed a lawsuit against All In Enterprises, the manufacturer of a mite-killer called Guardian which is popular among cannabis growers. Guardian touted itself as “100 percent natural,” listing only cinnamon and citric oils as its active ingredients. But two independent chemists took a closer look at marijuana sprayed with Guardian and found it also contains the insecticide abamectin. Guardian has been pulled from shelves, and the State threatens to impose civil penalties. The lawsuit filed by Bradley Lillie accuses All In Enterprises of fraud, negligent misrepresentation, and violation of the state’s unlawful trade practices act.
The president of the company, Tommy McCathron, thus far has responded with the wide-eyed coo that he simply hadn’t been aware that the label had to include all active ingredients.
Barring further examples of gross stupidity or all-out snake-oil-salesmanship, we’re unlikely to see many lawsuits on chemical companies until a loosening of federal policy, which could cajole larger companies to try to get in on the action by deliberately marketing their products for marijuana. This would open a new region of consumer watchdogs and potential lawsuits for those companies too exuberantly pushing risky substances.
2. Labeling and Packaging: stoner’s surprise.
Last summer I helped a friend move out of her apartment in Colorado, which included the extra perk of snacking on all her unpackable food (you’ve gotta clean out all those cheez-its boxes SOMEHOW). The little left-behind extras included a slightly bitter caramel, that looked like a cutely-wrapped treat her Mormon mom had baked up just for Valentine’s Day.
You see where this is going.
An hour later, while I was alone on my bike on a busy street, the space-time continuum twisted more-or-less inside-out. It took me hours (or what seemed like hours — really, who knows?) to piece together what had happened to my poor brain.
Maureen Dowd wrote about a similarly absurd experience in legal-weed-tourism. She was just trying to see what all the fun was about and wound up “panting and paranoid” for twelve hours or so. When she later talked with a medical consultant at an edibles plant, she learned that a novice like her should only eat 1/16 of the candy bar she scarfed up — “but,” she notes, “that recommendation hadn’t been on the label.”
Personal injury attorneys are no strangers to drug labelling lawsuits. In the shifting panorama of state regulations about how to wrap up and label your stuff, there haven’t yet been lawsuits representing consumers who felt they were mislead by a weed label or lack thereof. However, as attorney Rebecca Millican puts it:
As we’ve long argued, in this industry, which lacks uniform dosing and potency standards and operates without the scrutiny (or benefit, depending on how you look at it) of federal regulators such as the FDA and EPA, consumer products safety litigation has always been a question of when, not if. We hate to say it, but we’re going to say it: we told you so.
She continues: “With legalization comes normalization. If you are in the cannabis industry, you have to realize that you will (for the most part) be treated like other legal businesses, and this includes lawsuits.”
Attorneys are already predicting litigation over the somewhat wobbly labelling of THC potency in edibles. A three-month investigation by The Oregonian found that the vast majority of edibles in that state get their potency wrong. While most of them overestimate their levels of THC (which could lead to false advertising lawsuits), some pack a bigger punch than they promise, which could lead to more serious liability lawsuits. (Note: the entire process of determining THC levels is itself an unregulated wilderness, compounding all these problems).
Labelling and packaging is also an issue with accidental exposure, whether it’s a clueless friend helping you move out of your home, or a kid (or pet) gleefully chewing up cookies and gummy bears.
The Washington Post found that the first six months of retail marijuana legalization in Colorado led to a significant uptick in emergency room visits for marijuana exposure by children under 9. Some states have instituted new rules on the assertion that opaque, child-proof packaging can reduce accidental child ingestion by half, while other states are much more lax.
Pot edibles are usually sweet and colorful, offering the perfect temptation to kids. Will marijuana face the same spate of lawsuits that stopped tobacco companies from selling fruity and candy-ish cigarettes? And speaking of cigarettes: will any cannabis advertisers try a Joe Camel approach to their doobies and treats? After all: most industries seek to hook children at a young age to best establish brand loyalty. In the meantime, just as the EPA isn’t regulating pesticide use in pot and the FDA remains mum on dosage, the Federal Trade Commission has no rules for marijuana marketing. Do we really trust that this industry will police itself without some push-back from consumer watchdogs?
Some dope-aficionados may counter that the comparison with cigarettes isn’t apt. Cigarettes will kill you, while pot just chills you out, right? But without quoting Reefer Madness or garumphing “kids these days!” it’s worth noting some serious arguments against juvenile pot use. Persistent pot use beginning in adolescence has been linked in peer-reviewed studies to “neuropsychological decline broadly across domains of functioning.” The National Institute on Drug Abuse notes that beginning marijuana use as a teenager could “reduce thinking, memory, and learning functions and affect how the brain builds connections between the areas necessary for these functions” — and its looking like this brain-numbing could be permanent.
Washington state has jumped ahead of the others in banning cartoons, toys, and other pictures that could appeal to young children on marijuana products. Researchers from John Hopkins Bloomberg School of Public Health are calling for other states to follow suit and go further, nixing those candies and desserts. “Regulators need to be especially aware of how appealing marijuana-laced candies and cookies look to children and adolescents,” a member of the study said, noting that we have evidence that tobacco products featuring candy or fruit flavors encouraged “experimentation, regular use, and addiction among youth.”
This comes as news that Colorado now has the highest underage pot usage of any state. Any legal team connecting kid-oriented marketing to the neurological damage done to young users could be a thorn in the side of those businesses that fail to follow these more stringent guidelines for keeping their weed away from kids.
3. Employment Law: is marijuana pain relief or a pink slip?
Our entire lives it’s been obvious: weed was a work-killer. If you got caught with those chemicals in your system you could be fired on the spot, with no right to holler for recourse. But public opinion is changing. When Joseph Casis was fired from Wal-Mart in 2009 because he treated pain from a brain tumor with legal medical marijuana, the public seemed to squirm with discomfort: does it make sense to demand that a person choose between legal pain relief and a job?
But even with a change in public perception, firings over weed use are still afoot in weed-legal states. Last fall, the American Bar Association recently summarized the protections users of medical marijuana have in the workplace, and determined that the answer remains: ‘not much.’ As long as weed remains a Schedule 1 controlled substance under federal law, employers will have ample room to punish pot-users, and those who want to smoke and keep their jobs have little hope. Most states that have decriminalized marijuana are silent on the question of employment protections, and courts in California, Colorado, Michigan, Montana, Oregon, and Washington have all affirmed the right of bosses to fire anyone with THC in their system.
This was recently highlighted in the Colorado Supreme Court decision in Coats v. Dish Network. Even though it’s illegal in Colorado to fire a worker for engaging in “any lawful activity” outside the workplace, the judges found you could fire over pot. Marijuana, they assert, isn’t properly ‘lawful,’ since it’s still illegal according to federal law.
Those who protest rulings such as these are concerned that we’re taking a decision on pain management, which should be made between patients and doctors, and handing it over a third party. Employers are given veto power over a medicine that could be their employees’ best treatment option, even when it would be used only off-site.
Fortunately for them, it appears we’re watching a slow release of the zero-tolerance stance, as the issue of employee protection for medical marijuana goes from yeah-right into a “legal gray area.” While most courts wouldn’t cotton to an employee who used marijuana on the job, when medical marijuana is used away from the job, but still shows up on drug tests (as in the Casis case above), the language of workplace accommodation and disability might have wiggle room.
Can state or federal disability legislation protect a worker who is following a doctor’s recommendation to take weed (away from the workplace)? The question hinges on how a jurisdiction will define ‘disability.’ If a legal team can make a winning argument that allowing medical marijuana use, off the job, is a ‘reasonable accommodation of a disability,’ employers should be held to that unless they can show doing so would give them ‘undue hardship.’.
It’s also worth looking closely at state legislation which protects employees who do something lawful from being fired. Though these statutes often came into being with tobacco use in mind, they could have wider applicability for weed users. Though once again, any big change would likely only occur if the federal government were to reduce their classification of marijuana.
The states that do address some protection for pot-using employees (Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New Hampshire, New York, Rhode Island, and the District of Columbia) all have their own wording and focus (find more state-specific guidelines here and here). But they generally aim to stop blanket employer discrimination against card-holders who test positive for cannabis in their system and have no other workplace problems. Employers typically can then investigate whether the drug levels are consistent with medical use, and whether the job has a special requirement which a marijuana user might be unable to fulfill. They can still withhold a job or fire someone over their pot-use, but only after showing deliberate and documented reasons for it. No state currently requires employers to accommodate the use of medical marijuana during work hours.
And even when firing is acceptable, other protections may remain. For instance, in October 2014 a Michigan Court of Appeals found that even though employees could be fired for medical marijuana use, they retained the right to unemployment benefits, since denying benefits would violate the state law’s prohibition on penalties for using marijuana
However, no reviewing court has had a chance to sink its fangs into these questions. With the mixed messages of federal criminality and state acceptance, no one’s placing heavy bets on what will happen from here.
A final note on workers’ compensation: even without FDA approval and the stamp of worst-case illegality at the federal level, there may be some situations in which marijuana can be covered by employers or insurers when workers have been injured on the job.
Currently, cannabis coverage is almost always shot down — since the drug isn’t included in any workers’ compensation treatment guidelines, insurers have the ability to categorically deny coverage. But as with everything else, some change is happening here, too. The front guard of this transformation is New Mexico, where the Court of Appeals has ruled three times since May 2014 that medical marijuana is “reasonable and necessary” for coverage under workers’ compensation, and that state laws allow us to consider a recommendation from a physician as essentially the same as a prescription. (The cases are Gregory Vialpando v. Ben’s Automotive Services and Redwood Fire & Casualty; Miguel Maez v. Riley Industrial and Chartis; and Sandra Lewis v. American General Media and Gallegher Basset.).
4. Medical Malpractice
As it now stands, a doctor can’t actual prescribe marijuana. In states where medical weed is legal, she can only register that a patient has a condition that qualifies them for its use (these conditions vary state-by-state), and opine that the risks of using the drug are outweighed by its potential benefits.
This process limits the doctor’s liability, which may explain why, according to MedScape, there have been no medical malpractice lawsuits against doctors concerning marijuana recommendations.
It’s also possible that any patient seeking out a newly-legal marijuana recommendation is simply unlikely to feel injured enough by receiving one to sue. As it now stands, doctors who play fast and loose with pot-allowances are much more likely to face consequences from their own state medical boards than they are from disgruntled patients.
But this doesn’t mean we won’t be seeing medical malpractice lawsuits in the future. One likely scenario could be a case similar to those in which a doctor has improperly prescribed opioids. COPIC Insurance senior counsel Dean McDowell explains:
“The allegation would be that he shouldn’t have recommended it in the first place, didn’t do an adequate exam, or didn’t warn of the potential for addiction. But because doctors don’t prescribe marijuana or control the dosage, it’s hard to see how such a lawsuit could succeed.”
But the potential for lawsuits could remain for doctors who fail to provide full informed consent to their patients about side effects. These might include:
- risks while driving
- risks of suicidal thoughts
- drug interactions
- possibility of addiction (roughly 1 in 11)
- short- and long-term cognitive effects
- psychiatric conditions
- lung problems
- increased likelihood of heart attack.
- problems with child development during and after pregnancy (as the substances could be excreted in breastmilk)
5. Other Considerations
Another issue which personal injury attorneys are facing is how to defend clients who use medical marijuana and are plaintiffs in an injury claim. While this issue is similar to any situation where plaintiffs use medicines that can affect their thinking or motor skills, marijuana is likely to carry an additional stigma among judges and jurors, even where it’s legal.
Scholars are still in the process of deciphering the effects of legal pot — especially in situations like driving. It’s possible that over time states will develop a notion of ‘legal threshold’ for the substance, similar as the one that exists for alcohol.
But levels of impairment are notoriously difficult to measure with marijuana. While alcohol has one chemical intoxicant that is released immediately following a drink, pot has a variety of psychoactive chemicals which can be stored in fat cells and slowly released over time. This means blood levels for pot use can be significant even when the user is no longer mentally affected by the drug. Dr. Matthew Lee notes that the criteria for mental health professionals for pot intoxication is purely based on behavioral criteria, without even mentioning blood levels.
All of these issues will have to be carefully explained to judges and juries when cases like this come to trial.
What legal issues are you watching as weed is decriminalized throughout the country? Let us know in the comments below.