Project Description

What are you smoking?

Fragmented oversight grows cannabis litigation risk

The list of states with legal dispensaries selling recreational cannabis is growing fast—and many believe that momentum can’t be stopped. So, consumers can rest assured that their purchases are clean, safe, tested, and properly labeled, right? Maybe, maybe not.
Surprisingly, despite increased legalization, the luck of the draw still applies when it comes to product quality. We spoke with cannabis experts to help shed some light on looming issues and the corresponding potential for future lawsuits.

Haphazard regulatory efforts enable product inconsistency

The scattered marijuana legalization in the United States already creates legal jeopardy for users—indulging freely is fine in some locales but can get you jailed in others. It only makes sense then, that consumer protections related to product quality and consistency also have a bit of a disjointed feel as each state makes its own rules and the nascent cannabis industry is still figuring it all out.
During the midst of a rush to capture market share, many growers and sellers are responding to the adapting regulatory landscape by doing the minimum amount required within the jurisdictions where they operate. This means little additional product safety evaluations because the industry is focused on business-operations and not the product-quality oversight that is typically expected in established consumer-product industries. Until the cannabis industry regulations mature and look more like those within the rest of the consumer-product environment, the situation is ripe for lawsuits. Based on our observations, here are just some of the concerns.

Testing for the presence of pesticides is not clearly defined

For food and agricultural products this is a tightly regulated issue with clear government standards that dictate specific testing requirements. In the cannabis world, regulatory requirements for pesticide levels are fragmented across states, can be nonspecific, and are often subject to change.
Massachusetts has some of the most stringent requirements for testing cannabis products for pesticides. In fact, it was the first state to create laboratory testing requirements through the Department of Public Health. Other states began their journeys into legalizing marijuana by regulating the business side of operations first, only gradually building on the public-health side of the equation, which remains elementary at best. To complicate matters further, the United States Environmental Protection Agency (EPA), usually the final authority for pesticide standards in the United States, is virtually silent on the issue because cannabis is illegal at the federal level.
The pesticide question is further complicated by the multiple forms of the cannabis product consumers may purchase. For example, for those who smoke marijuana, pesticide exposure would typically occur from combusting the amount of dried marijuana buds in the cannabis joint. For those who ingest edibles, the exposure may be much greater. Edibles require extracting THC from a much larger amount of cannabis product to create the liquid or wax-like concentration that is then added to the edible. This process potentially concentrates any pesticides on the plants and, therefore, increases the amount found in edible products.
So, are there pesticides in the cannabis you’re ingesting, and, if so, at what levels? Information likely varies greatly depending on the jurisdiction and the individual grower. In many areas of the country millions of dollars in cannabis is grown exclusively indoors in an environment that has a high potential for mold and pest concerns. There is strong incentive to use pesticides to minimize these risks and protect profits. A lack of adequate oversight would potentially expose the consumer to a potentially dangerous pesticide—opening the door for class-actions.
There is also exposure to the business operations side for cannabis producers. For example, if testing in one jurisdiction indicates that a banned pesticide has been used, millions of dollars’ worth of product could be ordered destroyed, without any clear-cut regulations that could have helped producers make proactive decisions to avoid such an outcome.

Cannabis potency is hard to measure and effects on users varies widely

Potency, particularly in edibles, is another area where the lack of national or federal standardization causes confusion and potentially dangerous situations for consumers. Product potency, which refers to the amount of THC, is notoriously difficult to measure in cannabis edibles for several reasons.
The effect of cannabis varies widely between individuals. For example, a person with no prior usage often experiences a much stronger reaction than someone who has previously used the product. This is often described as tolerance. Genetic makeup is another, some people simply react differently to plant cannabinoids, ranging from no noted effects to extreme paranoia or anxiety. Even appetite changes, colloquially known as “the munchies,” aren’t a universal reaction for all users.
An added complication for edibles is the lack of an immediate response when the product is ingested. Since it takes time to experience an edible, some consumers have accidentally overindulged. The most well-known example is New York Times’ columnist Maureen Dowd. When cannabis was legalized in Colorado, she overindulged on a candy bar edible from a legal dispensary in Denver because she initially felt no effect. The ultimate result? She lay curled in a paranoid, anxiety-ridden hallucinatory state for eight hours. In her case, she spent a bad night in her hotel room. What if she began feeling the effects at a particularly inopportune time—such as while driving?
The other issue with edible potency is in the products themselves. Several lab-testing experiments have proven that potency labeling can be inconsistent. Some products have much less THC than advertised and some have much more. Some of that inconsistency could be the result of uneven distribution of the THC within a given batch of edibles. In either case, whether consumers inadvertently overconsume, or products are not properly labeled, lawsuits are likely to follow.

A multibillion-dollar industry + patchy oversight = lawsuits

It’s astonishing, if you think about it. Legalized cannabis is clearly one of, if not the fastest-ever, growth industries given that the recreational side of the industry was legalized just a few years ago. What other multibillion-dollar industry has business-operations governance but little-to-no regulatory oversight for product-quality?
The cannabis industry would benefit at all levels from specific, consistent regulations that apply to the entire nation. Consumers could buy confidently, knowing their product has been tested for purity and potency labeling is meaningful. Operators could reduce business risks if they could follow clearly defined guidelines. Running a cannabis business is difficult and expensive, but running it in an environment where each state has its own rules, those rules are in constant flux, and the federal government has yet to weigh in makes the future hazy for both consumers and the cannabis industry. However, it makes one thing perfectly clear from a legal perspective—there will be litigation.
About Rubin Anders
For almost 20 years, Rubin Anders has delivered scientific experts to support high-stakes litigation. Our research team is comprised of scientists and attorneys uniquely positioned to understand our clients’ needs, and we leverage our global network of more than 20,000 scientists to reach the expert best positioned to support each client’s success.