Yesterday I attended a special meeting of the Metropolitan King County Council Health, Housing and Human Services Committee. I was asked by a council member to attend to engage in discussion surrounding a proposed ordinance to allow the King County Department of Public Health to purchase cannabis products from retailers, and then take those products to labs for pesticide testing. Products that test positive for prohibited pesticides would not subject retailers to any sort of fine or penalty, but the information would be made public via the County’s website, and the information would be shared with the Liquor and Cannabis Board.
WAC 314-55-084 (the Washington State statute on “production of marijuana”) dictates the pesticides not allowed in cannabis production, and producers must ensure that their cannabis products have been tested for those prohibited pesticides pursuant to WAC 314-55-102. On May 18th, the Liquor and Cannabis Board adopted an emergency rule addressing pesticide action levels. This rule went into effect immediately, and set the action levels for prohibited pesticides needed to establish a point at which a cannabis sample will fail quality assurance testing and thus be subject to destruction or recall.
The position of the proponents of the King County ordinance is that the Board does not have a regular system for enforcing its pesticide rules, and that tainted products are nevertheless making it into the hands of consumers. According to the staff report issued on the proposed ordinance, “Testimony from the County’s Chief Medical Officer and other health care professionals and researchers before the King County Board of Health noted that the chance of prohibited pesticides in marijuana products being available at retail marijuana stores could constitute a significant threat to public health and safety.” All test and inspection results would be presented to the Board for possible state enforcement action, and would be made available for public inspection.
Whether or not the King County Council adopts the proposed ordinance later this month, the public policy and products liability issues remain. Though most state’s product liability laws favor those not directly involved in manufacturing a defective product, there are circumstances under which retailers (including cannabis retailers) can be held liable for defective products, even without any knowledge of the defect. Contrary to popular belief, just because a retailer did not make the defective product it sold, does not mean it cannot be held liable for it. The same goes for a cannabis product tainted with pesticides.
You can reduce your cannabis business’s product liability risk by, among other things, doing the following:
- Set up your cannabis business so as to protect yourself from personal liability. For more on this, check out Cannabis Businesses And Corporate Separateness and Cannabis Business and Corporate Separateness, Part II
- Vet both the manufacturers with whom you work and the products you sell.
- Use appropriate packaging and warning labels on the products you sell. For more on this, check out Cannabis Products and Dosing: Educate, Educate, Educate and Label, Label, Labeland Pot Puppies? Let’s Talk Labeling and Packaging. NOW.
- Have contracts with your manufacturers that specify the manufacturer’s product safety requirements, the manufacturer’s liability for defects or other problems, the manufacturer’s agreement to fund your defense costs if you are sued over a problem arising from the manufacturer’s product, and the requirement that the manufacturer maintain adequate insurance.
- Get good insurance for your own cannabis business.