By Michele Brooke
To continue our series on the topic of product liability, this article focuses on strict product liability based on failure to provide adequate label warnings for marijuana (including concentrates or oils) and marijuana-infused edible products.
The term “strict liability” is an intimidating legal theory, because it means legal liability without fault or negligence. This legal theory does not include the concept of intent. In other words, it may not matter that a product manufacturer or distributer did something with intention to hurt anyone. A defendant in a strict liability lawsuit could be liable if the product had an inadequate warning label when it left their control. The label could be inadequate, for example, if there were not enough information, or includes information that is stated improperly. Potential defendants in a strict liability failure-to-warn lawsuit include the manufacturer, seller and distributer of a product.
When flowers, oils or infused food products are placed in the marketplace, the manufacturer and purveyors have a duty to ensure that adequate warning labels are on the products and that those labels list potential risks and/or side effects inherent in consuming the product. Listing the risks is crucial, particularly if a risk or side effect may not be obvious to the consumer. With the hundreds, if not thousands, of infused products hitting the marketplace all over the United States, this is an issue the industry must give careful attention, especially since most states do not yet have marijuana-infused product laws or regulations. Manufacturers, distributers and sellers can still be liable even if there are no formally-written rules broken.
The infused products learning curve
Infused product manufacturers and purveyors must appreciate that the average new consumer entering the marketplace may not have a sophisticated knowledge about marijuana. In other words, the learning curve is substantial. For example, the term THC (tetrahydrocannabinol), which is the chemical in cannabis providing a psychoactive effect, even if listed on the product label, may be a foreign term to a new consumer. Furthermore, the plethora of marijuana newbies may not understand the different levels of potency or the concept of delayed effect. So it is up to the industry to educate consumers, and the product label could be the first step.
This means, when considering a product label, one has to ask whether merely listing the amount of THC, with nothing more, is adequate. Consequently, infused product manufacturers, oil or concentrate manufacturers, and all marijuana purveyors should take seriously the warnings on their product label and/or packaging.
For the foreseeable future, cannabis manufacturers or purveyors, whether they are selling cartridges, flowers, cookies, lozenges, beverages or any infused product, should have a comprehensive plan in place to educate their customers of the potential risks of their products. While attending an infused products conference in Colorado this past October, the Colorado-based Cannabis Business Alliance passed out an impressive edibles education postcard containing excellent new consumer education tips. These tips included starting with one low-dose serving, and suggested what a low-dose serving might entail. It also cautions consumers to wait up to two hours to gauge the effect of the product, not to mix edibles with alcohol, and to keep edible products out of the reach of children. More about the Cannabis Business Alliance can be found at cannabisalliance.org.
A new consumer example
A new marijuana user — let’s call him John — purchases his first infused chocolate cookie at his local dispensary. Marijuana is listed as an ingredient on the label, as is the amount of THC. The label says the product contains 100 milligrams THC, and that one package contains four doses.
After the purchase, John gets home, packs his suitcase for a road trip and consumes a quarter of the cookie. Nothing happens. Ten minutes later, he eats another quarter of the cookie; still nothing. So, he thinks, what’s the big deal? These things don’t work.
John gets into his vehicle and drives. Suddenly, 30 minutes into his trip, while traveling at 70 mph down the highway, the THC kicks in. Stunned by the sudden effect of the THC, John does not know what to do, and winds up getting into a horrible car accident, injuring other people. John will definitely be sued by the people he injured. But, so will the cookie manufacturer, and probably the dispensary owner who sold John the cookie.
What a Jury May Be Required to Evaluate.
Under a strict liability failure-to-warn legal theory, a jury may be asked to decide the following in the lawsuit filed against the cookie manufacturer who also packaged the cookie:
- Did the manufacturer sell/distribute the cookie?
- Did the cookie have potential risks or side effects that were known (or knowable) in light of current scientific knowledge that is generally accepted in the scientific community at the time of manufacturing?
- Did the potential risks or side effects present a substantial danger to the person consuming the cookie in an intended or reasonably foreseeable way?
- Would ordinary consumers, such as John, have recognized the potential risks or side effects of the cookie?
- Did the manufacturer fail to adequately warn or instruct of the potential risks or side effects of consuming the cookie?
- Was the lack of sufficient instructions or warnings on the cookie label a substantial factor in causing harm to the injured persons?
If each question is answered affirmatively, the harmed people could recover lost earnings for time off work recovering from injuries; financial compensation for current and future medical expenses; future lost earnings if the plaintiff could not work the same job because of their injuries; compensation for pain and suffering, etc.
Potential liability is also a reason to make sure your company has an adequate insurance policy to help in the unfortunate event of a lawsuit.
More adequate warnings
What more could that cookie label have said, besides simply listing cannabis as an ingredient and the amount of THC? Would the label have been more adequate if it stated a lower recommended dosage? Is 25 milligrams THC too high of a dose for a novice patient? (The Washington State Liquor Control Board deems one serving size to be 10 milligrams THC.) Could the warning have been more meaningful to John if the label stated that the intoxicating effect of the THC could be delayed by one or more hours? Should the label warn against driving under the influence? What if a website were advertised on the label for customers to get more information about THC and precautions related to consuming cannabis products? What about placing a QR code on the product, so that a mobile phone could scan and retrieve additional information? What about, as a matter of policy, including a warning postcard with the purchase of any product containing marijuana?
The objective of this article is to urge product manufacturers, and any purveyor in the stream of commerce, to understand the legal standards in play, and to make it a priority to come up with a warning strategy that adequately reflects those legal standards. To develop a strategy, begin with researching the websites of industry leaders, or contact a lawyer knowledgeable about the cannabis industry; this will ensure the safest path possible for you to limit potential liability.
Michele Brooke is an attorney in California who practices civil litigation and civil cannabis law (www.brookelawgroup.com). She is a member of Americans For Safe Access, NORML and the American Herbal Products Association, Cannabis Committee.