In the nation's first product liability claim involving the legal marijuana industry, a Colorado marijuana grower was recently sued in a proposed class action claiming a failure to warn consumers that its marijuana was treated with a fungicide known to break down into a carcinogen when ignited.

In Brandan Flores and Brandie Larrabee v. LivWell Inc., Case No. 2015-cv-33528, filed in the District Court of Denver County Colorado, plaintiffs, two marijuana users, allege that marijuana distributor LivWell has been treating its plants with the pesticide Eagle 20 EW, which has been approved for use on certain crops but not on agricultural products meant to be smoked, such as tobacco. Plaintiffs claim that they would not have smoked marijuana purchased from LivWell had they known that it contained the poisonous fungicide.

Colorado is one of four states, along with the District of Columbia, that has legalized the recreational use of marijuana. While Colorado has approved a list of pesticides that are acceptable to use in connection with marijuana growing, there are no relevant federal safety guidelines. This is due to the fact that federal law makes no distinction between marijuana and any other controlled substance, such as heroin or cocaine. Indeed, federal law classifies marijuana as a highly addictive drug with no medicinal value under the Controlled Substances Act, 21 U.S.C. § 811.

This case shines a light on the lack of oversight concerning which chemicals should be allowed in the cultivation of cannabis for legal production and consumption. In the absence of federal regulations, similar claims involving marijuana products in Colorado and in other states are certainly possible.