Every couple of months or so, a news story breaks espousing the dangers of marijuana edibles. Unsurprisingly, on the heels of recent studies showing that marijuana testing labs aren’t all that accurate, a recent Denver Post article is once again playing on primarily unfounded fears surrounding edible cannabis products.
Edibles regulation is an issue that both Colorado and Washington rule makers have grappled with since the inception of their recreational marijuana laws. Both states have released numerous amendments to their rules governing edibles labeling, packaging and warnings.
Following Maureen Dowd’s infamous New York Times piece detailing her marijuana “overdose,” as well as the widely reported suicides of two individuals who had consumed cannabis edibles, anxiety over how to properly regulate these edibles has reached a new high. The debate, however, seems to have somewhat shifted from “how to prevent accidental ingestion by children” to “how to prevent adults from ingesting too much.” This second issue is tougher to tackle. If clear, visible warnings are in place on packaging, is the government even capable of ensuring that reasonable adults heed those warnings? Where do we draw the line between the manufacturer’s responsibility to warn, and the individual’s responsibility to act … responsibly?
In General, a manufacturer has a duty to warn consumers where: 1) the product supplied is dangerous; 2) the danger is or should be known by the manufacturer; 3) the danger is present when the product is used in the usual and expected manner; and 4) the danger is not obvious and well known to the user.
Based on these criteria, it’s pretty clear that marijuana edibles are deserving of a warning from the manufacturer. The difficulty stems from the lack of objective criteria for determining the adequacy of any given warning. Even well-intentioned manufacturers may wind up in a lawsuit where the fact-finders deem their warnings inadequate.
What standards can a manufacturer look to in crafting their product warnings? The Third Restatement of Torts provides that, “a product … is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.” These are not objective criteria and do not provide manufacturers with a clear set of guidelines.
One thing that is clear is that compliance with labeling and packaging regulations may not be enough to successfully defend against a products liability lawsuit. Self-regulation is key, and many of our clients undergo regular audits to ensure that they are complying with both state and local packaging and labeling laws and with industry best practices. Because in the end, the best warnings are going to vary with the product, the nature of the sale, and even the person buying it.