Like the rest of the manufacturing world, cannabis Industry participants are beginning to face product liability risk following the legalization of marijuana. Last week, three sons of a woman killed by their father during an alleged marijuana-induced hallucination filed suit in Denver County against a marijuana edibles bakery and dispensary. Kirk v. Nutritional Elements, Inc., and Gaia’s Garden, no. 2016cv31310 (Denver County Court). The children principally claim that the defendant violated the Colorado Consumer Protection Act by failing to provide adequate warnings on edible products sold to their father just prior to the fatal incident.

The accused killer, Richard Kirk, purchased “Karma Kandy” at Gaia’s Garden manufactured by defendant, Nutritional Elements. He thereafter began hallucinating. His wife, Kristine, called 911 during her husband’s incident and explained that he had been hallucinating for about 30 minutes, was screaming about the world ending, and was asking her to kill him. While on the phone with 911 operators, shots rang out. By the time emergency personnel responded, Kristine had died from a gunshot wound.

In their complaint, the sons allege that the defendants misrepresented the “quality” and/or “character” of the product and knew or should have known that the product could harm users or innocent third parties. They claim specific warnings were necessary because the risk of “strong drug effects, including possible psychotic behavior” would not be readily apparent to a reasonable consumer of cannabis edibles. They specifically urge that a warning of this possibility should have accompanied the product when sold. 

To win on this theory, the plaintiffs will need to establish, among other things, causation – in other words, that the ingestion of defendant’s edibles caused the incident and the proposed warnings would have made a difference. Causation in this type of case, like in food contamination cases, is likely to be an incredible hurdle given, for example, the variability of individual reactions and the inherent destruction of the product when ingested.

To combat this causation problem, plaintiffs are likely to attempt to introduce legislation pertaining to “edibles” that becomes effective later this year on the basis that its passage recognizes a risk of harm associated with overconsumption.  Previously, edible marijuana product labels in Colorado needed to only include either the amount of THC in the product or a statement that the product’s THC level has not been tested. The new legislation will govern testing and labeling and require, among other things, THC markings imprinted on the actual product (not just the packaging) and limitations on the potency of edible products and number of products that can be sold at a time. While the new legislation does impose new (and challenging) requirements on edible manufacturers and retailers, it does not go so far as to require the warnings urged by the Kirk plaintiffs. It may be quite a stretch, and arguably an impermissible inference, for a jury to agree that just because overconsumption could pose a risk of harm, that the edible product at issue was responsible for the fatal episode.

Regardless, while this may be one of the first, it certainly will not be the last case testing a failure to warn claim against the cannabis industry.  We should let this case serve as a warning of the type and flavor of claims that are on the horizon.  In the meantime, there are things that can be done to proactively manage this risk.

The two most important are:

1. Be diligent. Carefully monitor of the changing cannabis legislative landscape and stay ahead of the curve in terms of warnings and instructions that need to accompany your marijuana products. Informed counsel are available to help navigate these issues.
2. Be responsive. Immediately engage counsel and experts upon receipt of a notice of claim. This will best preserve evidence (or more likely document the lack thereof) and form the foundation of a solid defense strategy.

Notwithstanding its legality in certain states for medical or recreational purposes, marijuana is still classified as a Schedule I controlled substance by the United States Drug Enforcement Agency, and as such it remains a federal crime to grow, sell and/or use marijuana. Any content contained herein is not intended to provide legal advice to assist with the violation of any state or federal law, and one should obtain legal advice with respect to any state law compliance issues.