Medical Marijuana Breach of Warranty Class Action: Larrabee and Flores v. LivWell

Marijuana LitigationOn October 5, 2015, a discerning recreational marijuana patron (Brandan Flores) and an MMJ patient (Brandie Larrabee) of LivWell, one of Colorado’s largest chain of marijuana shops (and also a massive grower), hauled LivWell into Denver district court for LivWell’s allegedly having used Eagle 20, a petroleum-based fungicide, on its cannabis. The lawsuit contends Eagle 20 emits poisonous hydrogen cyanide gas when a product with which it has been treated is burned. Though neither of plaintiff claimed to have been physically harmed by LivWell’s products, they both allege they would not have patronized LivWell had they known about the fungicide on the cannabis they would be buying. This case is touted as the first marijuana-related class action suit, and the attorneys behind it claim there could be thousands of similar plaintiffs (note, however, that the class action designation may only be a threat; plaintiffs in these sort of cases often say they will bring class claims, but never get around to requesting class status, let alone convincing the court to grant such status.) In other words, this is only the beginning of consumer safety litigation, not only for Colorado, but also for growers and dispensaries in other states with developed markets like Washington, Oregon, and Nevada.

This case highlights another important cannabis issue: the indisputable need for states to robustly regulate pesticide, fungicide and other chemical applications used on cannabis, and to strictly enforce testing and safety standards, as Alison Malsbury (one of our cannabis business lawyers) pointed out in the LA Times. Colorado has made efforts in this direction, quarantining tens of thousands of LivWell plants earlier this year to check for Eagle 20. That quarantine was ultimately lifted because only low levels were found, despite Eagle 20 not being on Colorado’s draft approved list. LivWell says it has stopped using the fungicide. This backstory simply begs the question: Is Colorado taking consumer safety seriously?

As of February 11, 2016, the district court dismissed this case.

Larrabee and Flores v. LivWell, Inc., District Court, Denver County, Case no. 2015-CV-33528.

NOTE: The above is part of our plan to summarize all cannabis civil cases with a published court decision. By civil case, we mean any case that involves cannabis or the cannabis industry that is not a strictly criminal law matter. These cannabis case summaries are intended both to keep you up to date on cannabis laws as interpreted by the courts and also to serve as a resource for anyone conducting cannabis law research. We also will seek to provide key unpublished cannabis law decisions as well, when available.