Colorado Marijuana Distributor Wins Battle in “First of Its Kind” Pesticide Exposure Lawsuit, But Is the War Just Beginning?

One of Colorado’s largest marijuana distributors and growers, LivWell, Inc., successfully moved to dismiss a “first of its kind” class action lawsuit brought against it for the use of an allegedly harmful petroleum-based fungicide on its marijuana crops. The decision, while favorable to the defense, may also have provided a roadmap for similar suits in the future.

Plaintiffs Lack Standing, Court Finds

Plaintiffs and putative class representatives Brandon Flores andmyclobutanil Brandie Larrabee claimed the pesticide, which contains the active ingredient myclobutanil, emits potentially harmful hydrogen cyanide gas when the marijuana is burned. However, the lawsuit never alleged physical, toxic injury. Instead, plaintiffs asserted causes of action for economic injury (including breach of contract, misrepresentation, and breach of warranty claims), alleging only that they overpaid for the marijuana in light of its “contamination” with myclobutanil.

In issuing its order dismissing the case, the court engaged in a straightforward standing analysis under Wimberly v. Ettenberg, 570 P.2d 535, 539 (Colo. 1977), which requires a plaintiff to demonstrate both that (1) he suffered an injury in fact, and (2) his injury was to a legally protected interest. The court found that:

[p]laintiffs’ sole stated injury is that they overpaid for defendant’s product. There are no allegations that the product did not perform as it was supposed to, and indeed the Complaint alleges that Plaintiffs consumed the product. . .  [n]or are there any allegations that Plaintiffs suffered physical or emotional injury. (citations omitted)

Citing various cases that a claim of diminished value does not state an injury in fact, including Rule v. Fort Dodge Animal Health, Inc., 604 F. Supp. 2d 288 (D. Mass 2009) and Rivera v. Wyeth-Ayerst Laboratories, 283 F.3d 315 (5th Cir. 2002), the court found unavailing authorities cited by plaintiffs because there was no possibility of reselling the marijuana plaintiffs purchased.  As such, the court found that plaintiffs suffered no injury in fact and dismissed the case. Notably, the decision does not represent a substantive finding that the fungicide at issue was safe for human consumption.

A Roadmap for Future Toxic Injury Litigation?

The LivWell suit was dismissed because of a “legal technicality:” plaintiffs lacked standing to proceed in the absence of a legally cognizable injury in fact. However, in so ruling, the court may very well have unwittingly supplied a roadmap for future lawsuits. The court’s explicit statement that plaintiffs made no allegations of physical injury suggests that such an allegation would have been sufficient to satisfy the “actual injury” requirement and would have allowed plaintiffs to proceed with their lawsuit. Thus, future plaintiffs can cure this defect merely by pleading actual injury.

The Bigger Picture

This case highlights a growing area of concern for state governments, and industry participants, involving consumer safety surrounding the use of legalized use of cannabis.

With numerous states cannabisnow allowing marijuana to be legally sold for medical and/or recreational use, individual state regulations are struggling to keep up. For example, in California, the Department of Pesticide Regulation has published a bulletin called “Pesticide Use on Marijuana,” which states that there are no pesticides registered for use on marijuana and the use of pesticides on marijuana plants has not been reviewed for safety and human health effects. In fact, the only pesticide products not illegal on marijuana are those that contain labels with active ingredients exempt from residue-tolerance requirements and registered for use that is broad enough to include use on marijuana plants. The pesticide at issue in the Colorado case was approved for use on certain foods such as grapes, but banned for use on tobacco, creating confusion for those who are in need for products that control pests on their growing crops.

In 2013, the Journal of Toxicology published an article which attempted to quantify to what extent cannabis consumers may be exposed to pesticide and other chemical residues when they inhaled cannabis smoke. The authors noted that in 2009 the Los Angeles City Attorney’s office had tested medical samples available in California dispensaries and found two of the three samples they tested had extremely high levels of bifenthrin, a chemical used in pesticides. Further, the study found that recovery of pesticides in unfiltered smoking media such as glass pipes and water pipes ranged from 69.5% to 42.2%. Recovery from filtered water pipes was significantly lower – only .08% to 10.9%.

Substantial Litigation Risks For A “Growth” Industry?

As more states allow the legal use of cannabis, the state regulatory agencies are beginning to consider regulations for the industry. Inevitably, this leads to questions as to how existing state and federal environmental laws may apply to plants and their associated fertilizers, pesticides and growth agents. As a result, many producers of legal marijuana may be forced to guess what products may work on their crops, what products are safe when marijuana is smoked, what products are safe on plants ingested in foods, as well as what – if any – warnings may be required when their products are sold. At the same time, emerging businesses in the fledgling industry will likely find themselves beset by the same kinds of toxic tort litigation faced by other manufacturers, including pharmaceutical companies, for various alleged injuries as well as failure to warn of those potential injuries. Thus, as the LivWell case demonstrates, more claims for toxic injury may be on the horizon as the industry grows.

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Bed Bug Bill Bounces: Pesticides Called Pollution!

The Vermont Supreme Court recently held that the plain language interpretation of a pollution exclusion in a homeowner policy barred coverage for property damage to a home rendered uninhabitable by an over-application of a pesticide applied to eradicate bed bugs. The decision in Whitney v. Vt. Mut. Ins. Co., No. 15-073, 2015 VT 140 (Vt. 2015) is significant for insurance carriers because it restates the principle that pollution exclusions are not limited to traditional environmental pollution.

3-3The facts are straightforward. A pest control company sprayed plaintiffs’ home, “corner to corner” and “wall to wall.” with the pesticide chlorpyrifos to eradicate bed bugs. Notably, and very much relevant to the court’s analysis of the pollution exclusion, chlorpyrifos is not labelled for residential use and the spraying of the plaintiffs’ home with chlorpyrifos violated federal and state law. Surprisingly , there is a company that doesn’t any harmful solution to humans and can eradicate a lot of insect which is in pest bloomington, mn.

The homeowners complained to a state agency that the amount of chemicals sprayed in their home, which included walls and surfaces visibly dripping with the pesticide, was grossly excessive. After testing confirmed elevated pesticide levels, the plaintiffs were evacuated from the home for safety reasons.

Shortly after the testing was performed, the plaintiffs filed a claim with the defendant-insurer. Coverage A of the policy insures against a “physical loss to property.” Among the exclusions to the property damage coverage in Coverage A is a pollution exclusion, which states that the insurer does not insure for loss caused by:

Discharge, dispersal, seepage, migration, release or escape of pollutants unless the discharge, dispersal, seepage, migration, release or escape is itself caused by a Peril Insured Against under Coverage C of this policy. Pollutants means any solid, liquid, gaseous, or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.

The defendant-insurer denied the plaintiffs’ claim under the absolute pollution exclusion. Plaintiffs thereafter filed suit seeking a declaratory judgment that the losses incurred by the spraying of chlorpyrifos within their home were covered by the homeowners policy. On cross motions for summary judgment, the trial court ruled in plaintiffs’ favor, reasoning that the terms “pollution” and “discharge, dispersal, release, and escape” were ambiguous and therefore must be construed in favor of coverage.

On appeal, the issue was whether the pollution exclusion in the property damage coverage in the plaintiffs’ homeowners policy excluded coverage for the loss of their home due to the spraying of chlorpyrifos inside the dwelling. Examining the policy language, the Vermont Supreme Court determined that the pollution exclusion excluded coverage for the pesticide contamination insofar as the spraying of chlorpyrifos constituted a “discharge, dispersal, seepage, immigration, release, or escape” of the pesticide, for more immigration information there are resource online for this, more about the author of these resources here. Whether chlorpyrifos, applied in this context, qualifies as a “pollutant” was the more contested issue in the appeal. The dispositive issue was whether chlorpyrifos is a “contaminant” or “irritant.”

The court quickly answered the question, relying on the undisputed facts that chlorpyrifos may be toxic to humans, can cause nausea, dizziness, confusion, and at very high exposures, respiratory paralysis and death, and is banned for residential use. The pesticide applicator’s use of chlorpyrifos in plaintiffs’ home violated EPA regulations, and federal and state law. The concentration levels in the plaintiffs’ home were consistently higher than EPA action levels, thereby preventing plaintiffs from inhabiting their house. Accordingly, the court concluded, in reversing the trial court, that the terms “irritant,” “contaminant,” and “pollutant” plainly and unambiguously encompassed the chlorpyrifos sprayed “corner to corner” and “wall to wall” throughout the plaintiffs’ home.

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The EPA, DPA and Your First-Grader’s GPA?

Last week, the Environmental Working Group, a nonprofit health advocacy organization, petitioned the U.S. Environmental Protection Agency about a pesticide commonly used on apples.

The group urged federal regulators to impose harsh and unnecessary restrictions regarding the pesticide known as diphenylamine, or DPA. It cited the European Union, which prohibited levels above 0.1 parts per million two years ago, and arsenic, an accepted but then banned substance, as two strong reasons to conduct new scientific research.

The chemical is used frequently on apples in the United States to prevent browning of the skin during long-term cold storage. Tests conducted by the U.S. Department of Agriculture demonstrated measurable levels of DPA on 80 percent of their sample size, according to the EWG — with levels on those testing positive, four times greater than the allowable limits on European imports.

It may be a little premature to accept their cautionary rhetoric. It’s a mistake to “equate the presence of a chemical with the presence of risk,” says Joseph Schwarcz, director of the Office for Science & Society at McGill University in Montreal. Although Americans eat about 10 pounds of apples per year, a look at the database the EWG used to support its letter does not trip serious alarms. The database, a product of the USDA, shows just one of 744 apple samples it tested demonstrating a level higher than the government limit — most were far below the permissible limit.

The EU’s stance may be a product of how the United States and Europe view food differently, with America viewing food as a commodity and Europe much more concerned about where food originates.

Still, the EWG’s shopper’s guide urges consumers to buy organic fruits and vegetables; though, even organics are not pesticide-free.

The bottom line? No one should stop eating fruits and vegetables; although, first-grade teachers may be well advised to prepare for an avalanche of avocados, if the EWG gets its way.

EPA Proposes Increased Pesticide Regulation

On February 20, 2014, the Environmental Protection Agency (EPA) announced proposed changes to its 20+ year old agricultural Worker Protection Standard (WPS). EPA’s goal is to reduce the risk of injury and illness from pesticide exposure to agricultural workers and their families. EPA estimates the affected population at about 2 ETT BLOG_cropsmillion people. In addition to farm workers, the WPS would affect workers at timber tract operations, nurseries, orchards and greenhouses. “Family farms” are exempted from certain requirements of the WPS. In general, owners are exempted from providing themselves or members of their “immediate family” with safety training and information; cleaned and maintained personal protective equipment; decontamination facilities; notification of pesticide applications; and emergency assistance.

The proposed changes to the WPS include:

  • Annual mandatory trainings (now required every five years) to inform workers about the protections they are afforded under the law, including restrictions on entering pesticide-treated fields and surrounding areas, decontamination supplies, and access to information and use of personal protective equipment. The training will be expanded to include instructions on how to reduce take-home exposure on work clothing.
  • Expanded mandatory posting of no-entry signs for the most hazardous pesticides. The signs prohibit entry into pesticide-treated fields until residues decline to a safe level.
  • First time-ever minimum age requirement: Children under 16 will be prohibited from handling pesticides, with an exemption for family farms.
  • No-entry buffer areas surrounding pesticide-treated fields will protect workers and others from exposure from pesticide overspray and fumes.
  • Additional recordkeeping for improving enforcement and compliance, including requiring employers to keep records of application-specific pesticide information as well as farmworker training. Employers will also need to keep early-entry notifications for two years.
  • Personal protection equipment (respirator use) must be consistent with Occupational Safety and Health Administration (OSHA) standards for ensuring respirators provide protection, including fit test, medical evaluation, and training.
  • Available information specific to the pesticide application, including the pesticide label and safety data sheets, to farm workers or their advocates (including medical personnel).

The WPS does not change an owner’s obligation to provide decontamination supplies and emergency assistance to workers and handlers. The EPA’s proposed changes were published in the March 19 Federal Register. The WPS will be subject to a 90-day comment period and has extra control for pest control Wollongong, which ends June 17.

Image courtesy of Flickr by NRCS Soil Health