Colorado Governor Issues Executive Order Regarding Marijuana Contaminated by Pesticide

Written by M. Sean High

On November 12, 2015, Colorado Governor John Hickenlooper issued an executive order directing Colorado state agencies to take measures to protect the public from health dangers that could potential result from marijuana contaminated by pesticide.

According to the executive order, the Environmental Protection Agency (EPA) “regulates pesticides that are sold in the United States” and “also evaluates and approves the language that appears on each pesticide label to ensure safe use of the product.” The executive order stated that "[i]t is a violation of state and federal law to use a pesticide in a manner inconsistent with the EPA's labeling directions" and that any pesticide use inconsistent with the labeling directions causes a crop to become contaminated.  Furthermore, the executive order noted that when a crop is contaminated with a pesticide “it constitutes a threat to the public safety.”

Significantly, the executive order stated that “because marijuana [which Colorado legalized the commercial sale of in January 2014] remains a schedule 1 narcotic under the Controlled Substance Act, the EPA has neither assessed the potential health hazards posed by treating marijuana with pesticides, nor has it authorized the application of any pesticide specifically for use on marijuana.” As a result, through the executive order, Governor Hickenlooper authorized those Colorado state agencies statutorily charged with regulating the cultivation and sale of marijuana to destroy or place on administrative hold marijuana determined to be contaminated by pesticide. 

High Stake Litigation

Written by Stephen Kenney

On October 5, 2015, a class action product liability lawsuit was filed against LivWell Inc.  LivWell is a commercial marijuana grower in Colorado that produces marijuana for both medical and recreational use.  The named plaintiffs are Brandon Flores and Brandie Larrabee of Denver and Grand Junction, respectively. 

The suit alleges that LivWell Inc. failed to warn pot consumers that it sprays its marijuana plants with Eagle 20.  Eagle 20 is pesticide that contains myclobutanil and kills a variety of plant endangering pests.  The lawsuit says that when the fungicide myclobutanil is heated it breaks down to “poisonous hydrogen cyanide” and that consumers who smoke the marijuana that is treated with Eagle 20 ingest the gas.

Along with the claim that LivWell failed to warn the consumers about what they were inhaling, is the claim that LivWell gave “the public the false impression that LivWell’s cannabis plants were safe, when in reality they had been repeatedly treated with Eagle 20 and consumers would ingest hydrogen cyanide if they smoked such cannabis.”

The plaintiffs bring several claims against the pot grower including: breach of contract, breach of implied covenant of good faith and fair dealing, breach of express warranty, breach of implied warranties, and other claims.  Flores and Larrabee are seeking an injunction against LivWell and compensation in the amount they allegedly overpaid for the pot product.

Federal law does not specifically allow any pesticides to be used on marijuana plants.  The EPA regulates pesticides through the Pesticide Applicator’s Act, but it does not provide instructions for raising a crop that is still in violation of federal law.  Since the EPA is not involved, the Colorado Department of Agriculture has been left to enforce the Pesticide Applicators’ Act.  The issue is that state law is based on EPA findings and there are no EPA findings on pesticide use for marijuana.  Colorado agricultural officials were forced to negotiate a list of pesticides with the growers that could be used on cannabis plants.  The list does not include Eagle 20 or myclobutanil. 

The Denver Department of Environmental Health placed a hold on about 60,000 LivWell marijuana plants after it was discovered that the company regularly used Eagle 20 fungicide.  The hold was lifted after it was revealed that the pesticide residue was within the acceptable level for vegetation although it did not pass the test for tobacco plants or other plants that will likely be heated and inhaled by a consumer.