(Beyond Pesticides October 8, 2015) Colorado’s largest pot grower, LivWell Inc., was sued over illegal pesticide use in a law suit filed Monday in Denver District Court. Two marijuana users, one of whom suffers from a brain tumor and holds a medical card to use the product, allege that the grower used a potentially dangerous pesticide in the production of marijuana they later purchased. The suit asks for an undisclosed amount of damages and also claims that an implied promise to consumers was breached when LivWell sold high-grade and medical-grade marijuana treated with unapproved pesticides to consumers.
The main pesticide at issue in this case is myclobutanil or Eagle 20, which is the same product that led to tens thousands of plants being quarantined last spring after testing positive for the fungicide during a routine inspection by the Denver Department of Environmental Health. Growers claim that without the fungicide their plants are endangered. The 40-page lawsuit claims that myclobutanil, when heated, breaks down to “poisonous hydrogen cyanide” and alleges that consumers who smoke marijuana treated with Eagle 20 ingest the gas.” While neither plaintiff alleges they were sickened from ingesting the marijuana they purchased at LivWell, both claim they would not have inhaled the product if they had known it was treated with Eagle 20.
The lawsuit is the first of its kind to be filed against a marijuana company over pesticide use and highlights the ongoing debate in Colorado over what pesticides are safe to use on marijuana. For months, city and state officials, as well as growers and consumers, have been at odds with one another while trying to navigate the regulations, or lack thereof, governing the use of pesticides on marijuana grown within the state. Because marijuana is still listed as a Schedule I drug under the federal Controlled Substances Act, as opposed to a food or drug crop, the Environmental Protection Agency (EPA) is barred from reviewing any application pertaining to its use. Beyond Pesticides has told the state of Colorado that the absence of federal regulation creates a prohibition on registered pesticide use in marijuana production since it has not labeled for cannabis. However, the Colorado Department of Agriculture (CDA), state’s pesticide regulatory agency, has gone to great lengths to allow growers access to unregulated uses of pesticides by publishing a list of allowed “pesticides for use in marijuana production.” This summer, Beyond Pesticides sent a letter to CDA urging officials to reconsider their position on pesticide use in cannabis cultivation and warn them of violations of the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) should they continue to allow in marijuana production the use of pesticides not registered for that use.
The letter also addresses actions by CDA that encourages stakeholders to pursue exemptions for highly toxic pesticides by applying for Special Local Need exemptions from EPA, and indicates that the state intends to allow the use of other pesticides under general label language that has not be tested and specifically registered for use on marijuana. Both of these approaches violate federal law and EPA regulations. Given the potential legal challenges associated with approving toxic pesticides for use on cannabis, Beyond Pesticides encourages CDA to allow within the state only the use of pesticides of a character unnecessary for regulation, which fall under section 25(b) of FIFRA.
According to the plaintiffs’ attorney, Steven Woodrow, the current lawsuit is an attempt to enforce the law as it stands in the absence of action by CDA or state lawmakers to protect public health and safety. “In a larger sense [the plaintiffs are] saying the marijuana industry can’t go on unchecked and someone has to do something to stop these people from using Eagle 20 and other harmful pesticides,” said Mr. Woodrow. In comments to the Denver Post before the lawsuit was filed, Mr. Woodrow points out that, “We’d not be talking today if the state had acted quickly to protect consumers.”
The suit also takes issue with the fact that, although myclobutanil is used on other food crops, there are no allowable levels for it on marijuana because it is an illegal crop under federal law. However, city health officials allowed the plants to be released when tests showed only the lowest allowable levels of the chemicals, an action the lawsuit alleges was illegal because simply showing “the plants did not have ‘pesticide residue’ does not necessarily mean that the plants were safe for inhalation.” This is a significant step in reigning in the, up to this point, seemingly unchecked marijuana industry that has become a powerful force in the state of Colorado over the past three years. This lawsuit follows on the heels of actions taken just a few weeks ago by the state attorney general to crack down on the misuse and misrepresentation of the word “organic” in marijuana sales.
More information about state (including Colorado) regulation of pesticide use in marijuana cultivation can be found in Beyond Pesticides’ investigative report on the issue, which was published this past spring. The report highlights different approaches used by states and raises safety concerns due to loopholes in federal law. The report also recommends that states with legalization adopt laws governing cannabis production that prohibit federally registered pesticides and require the adoption of organic practices that only allow products exempt from registration based on the full range of possible exposure patterns, which is the same position expressed to CDA in Beyond Pesticides’ letter.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Source: Denver Post