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Friday, October 9, 2015

Marijuana Growers Dirty Secret

By Tommy Eden

In what I believe to be the first case of its type in the United States, Flores, a Colorado recreational marijuana user, and Larravee, a medical marijuana user, filed a purported class action in Colorado state court against LivWell, Inc., a large grower and distributor of recreational and medical marijuana in Colorado.  They allege that LivWell treated its marijuana crop with Eagle 20, a fungicide which was not on the Colorado Department of Agriculture's list of approved pesticides or fungicides at the time of its use. 

Eagle 20 is systemic and as such even though the marijuana may test negative the chemical is inside the cells of the plant.  When burned, Eagle 20 breaks down and releases hydrogen cyanide, a dangerous poison.  Their Complaint alleges claims for breach of contract, breach of the implied covenant of good faith and fair dealing, breach of express warranty, breach of implied warranty for fitness for a particular purpose, breach of implied warranty of merchantability, fraud by misrepresentation and omission, unjust enrichment and civil conspiracy. 

Flores and Larravee allegedly suffered damages in the form of monies overpaid for marijuana that was worth less than it otherwise should have been had the marijuana not been treated with Eagle 20.  Significantly, there is no allegation that either named plaintiff suffered physical injury.

LivWell was one of a number of growers whose marijuana plants were quarantined by the Denver Department of Environmental Health in March and April over concerns that they were treated with pesticides.  City Health Officials later released the plants after tests showed allowable levels of chemicals.  Because marijuana is still illegal at the federal level, the federal government has not provided any guidance on which pesticides or fungicides can be labeled for marijuana use.  The lack of any physical injury to the named plaintiffs likely accounts for the fact that they chose to pursue contract rather than tort claims. The case is Flores v. LivWell, Inc. 2015-CV-33528 (District Court, Denver County, Colorado)

Common Sense Counsel: as I commented in my most recent article concerning marijuana, smoking it is evidence of a special kind of stupid. Now I am giving you additional ammunition to share with your workers, family and friends as to why marijuana use may be particularly hazardous to their health.  The user is basically smoking a poison found inside the plant cells. They don't call it weed for nothing. Hopefully your warning message will not go up in smoke.

Tommy Eden is a partner working out of the Constangy, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at I wish thank Bill Nelson who practices law in Colorado Springs, Colorado with Lewis Roca Rothgerber LLP for bringing this case to my attention and helping me draft this column.