A first for the marijuana industry: A product liability lawsuit

By David Kelly

Oct. 8, 2015 4 AM PT

reporting from DENVER — For years, Brandan Flores has treated his chronic back pain with marijuana, a remedy he champions as a natural alternative to traditional medication.

But recently he heard rumblings that his drug of choice might be less wholesome than he had imagined.

“There was talk about Eagle 20,” he said, “and it concerned me right away.”

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Eagle 20 is a fungicide used to kill mites, mildew and assorted pests that flock to plants like hops and grapes. It also contains a chemical called myclobutanil, which produces hydrogen cyanide gas when burned.

Stunned that he might be inhaling toxic fumes, Flores and fellow medicinal pot user Brandie Larrabee, a brain tumor patient, sued the grower this week, filing the first product liability lawsuit against the marijuana industry.

“I want these companies to take a step back and look at what they are putting into their products,” said Flores, 24, who sued in Denver District Court. “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 target of the suit, LivWell Inc., owns nine pot shops in Colorado, which legalized recreational marijuana use last year. LivWell operates one of the largest grow houses in the world.

Company lawyer Dean Heizer did not respond to a request for comment. Earlier, he told the Associated Press that LivWell had stopped using Eagle 20 and that no consumer illnesses had been linked to marijuana pesticides.

In April, Colorado quarantined 60,000 pot plants from LivWell to check for Eagle 20 residue. The hold was lifted when only low levels of the chemical were found.

Afterward, LivWell owner John Lord released a statement saying laboratory tests of his plants “showed that our products are safe — as we always maintained.”

Neither Flores nor Larrabee contends that the marijuana has harmed them. But they say they would have never inhaled it if they knew it could release what the lawsuit calls “poisonous hydrogen cyanide.”

Their attorney, Steven Woodrow, said the growers “either knew or acted in disregard of the facts” when they sprayed the plants with Eagle 20.

“The state of Colorado has a list of approved pesticides for marijuana,” he said. “This is not one of them.”

Woodrow said this is the first lawsuit to challenge the marijuana industry’s grow methods. He is seeking class-action status for the suit and expects more plaintiffs to join in.

“Unless the industry cleans itself up, we can expect more lawsuits like this in the future,” he said.

The action comes as the marijuana business rapidly expands across Colorado, often outpacing laws trying to regulate it. New products, new ways to get high and new strains of weed come onto the market every day.

Woodrow compared the explosion of the pot economy here to the tech startups in Silicon Valley.

“We have a burgeoning industry that is growing on a scale never attempted before,” he said. “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.”

But rather than scale back, he said, companies resort to chemicals like Eagle 20 to save their crops.

“It is allowed on vegetation that is not inhaled, but it has been banned for use on plants like tobacco,” Woodrow said.

The lack of any federal guidelines for growing pot underscores the continuing conundrum of an industry still considered illegal by the U.S. government.

“The problem is getting a robust regulatory system in place so that consumers have reliable government standards they can count on,” said Alison Malsbury, a Seattle attorney with the Canna Law Group, which specializes in marijuana law. “The main message here is that marijuana companies can’t rely on meeting the bare minimum standards for product safety. If a consumer gets sick, they have a product liability case on their hands.”

Last week, Denver health officials quarantined more plants to check for traces of unauthorized pesticides.

Flores says it all comes down to trust. He became an activist for legalized marijuana shortly after a severe car accident left him with recurring lower back pain. He found marijuana eased that pain in an organic way without lining the pockets of big drug companies.

But after the legalization of recreational marijuana in Colorado, Oregon, Alaska and Washington, he said, the pot business is starting to resemble the rest of corporate America.

“They are only interested in pumping out large quantities of the product and not in taking time to nurture it,” he said. “If they are willing to compromise your health to make a profit, then I say we hit them where it hurts, in the pocketbook.”

Kelly is a special correspondent.

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