Source: Angel Reyes & Associates, Dallas TX
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Marijuana has long been the subject of debate as well as legal scrutiny under the criminal justice system. Now with the increasing development of cannabis-based goods, many are left to wonder where that leaves the producers, processors, and retailers in terms of liability when it comes to consumer harm.
As the marijuana industry becomes part of mainstream commerce in Texas and across the nation, a trend is emerging among civil product liability claims. Whether you work in the industry or have been harmed by a marijuana product, you’ll gain insight by discussing your situation with a Dallas legal team.
Understanding the Possible Product Liability Defects with Marijuana Products
All products that are created for use by the public may be subject to product liability lawsuits. Public liability is a legal term for holding the manufacturer, designer, or retailer responsible for the harm caused by using a particular product.
There are three main types of product liability claims that can arise with marijuana products in the commerce sector.
Manufacturing Defects
A manufacturing defect occurs when something is made dangerous due to using materials that are of low quality or making mistakes during production. If not for these issues, there would be no problem with the product. With regards to marijuana products, if the batch of marijuana used for the product is contaminated by pesticides or even a fungus, it would be considered a manufacturing defect.
Design Defects
When the design of the product itself is dangerous and in a way that most consumers wouldn’t expect, it is a design defect. Some claim that the health issues caused by consuming marijuana are a design defect, though this is still largely up for debate.
Marketing Defects
A marketing defect occurs when there is a product that has a danger that is not readily obvious. A prime example of this in the marijuana sector is edibles, which often contain higher concentrations of THC compared to other marijuana products. This type of defect is often referred to as “failure to warn” regarding a lack of proper warning labels to keep consumers informed.
Does the Illegality of Cannabis on a Federal Level Have Any Effect on Product Liability Claims?
Adding another layer of complexity to the scenario, the illegal status of marijuana on the federal level has nothing to do with product liability claims. This industry is rapidly growing, and every state seems to be on its own learning curve. As such, if there are recalls, they face challenges due to state-level regulations.
Another interesting point is that retailers in many states across the country may be held strictly liable when they sell defective products even if they did not do anything to render them defective. Some theorize that this strict liability clause will encourage retailers to urge that safer products are crafted by their suppliers and manufacturers.
The courts usually hold product manufacturers liable for putting an unreasonably dangerous product on the market. The trouble here is that community standards and what is expected are vital roles for what is deemed as an unreasonably dangerous item.
How Is This Different from Product Liability Issues with Alcohol?
Things are inherently complicated when it comes to product liability and marijuana. However, many people wonder about alcohol, another intoxicating substance that is legal for those 21 and up in the U.S.
If you think about it, alcohol has a long list of health risks and is noted for causing social and economic costs. Despite this, state courts do not usually hold retailers or suppliers of alcohol liable for the harm it causes. The only exception is for places of business that serve patrons who are visibly intoxicated.
Marijuana is in an entirely different field, although it is similar. The issue is that it is illegal on the federal level, which has hindered studying exactly how cannabis can affect people in an attempt to craft regulatory guidelines for its safe usage. As per the federal government, marijuana is still defined as a Schedule 1 drug in the Controlled Substances Act. Schedule 1 means that it is a drug that has a high potential for abuse with no medical use.
However, this federal legislation is behind as many states have taken steps to make medical marijuana legal. Some have allowed for legal recreational use. Both of these changes are at odds with federal law. What this all comes down to is that marijuana is classified differently from alcohol, making it far more complicated all around.
Biting Off More Than You Can Chew? Why Edibles Face the Biggest Issues in Product Liability
As marijuana begins to become more prevalent and available to consumers through legal avenues, the kinds of offerings are revealing troubling issues. Edibles are of the greatest concern and the item that seems to be causing the biggest concerns for product liability.
Unlike smoking marijuana, consuming it in edible form through a variety of offered products that range from gummies to brownies creates a slower onset time for the THC to take effect. This poses massive challenges in metering dosages. Consumers literally may bite off more than they can chew, ingesting a larger dose than necessary. While some might very well enjoy the ride, many others may experience anxiety, panic, and other negative symptoms.
With this inconsistency in potency, incorrect labeling, misunderstanding of how to use it, or simple ignorance on the part of the consumer, it has been argued that if harm comes from it, a product liability lawsuit can be brought forth. Additionally, the ease with which people can consume edibles—even children—has raised even more red flags.
To counter this, some states have started to require that the packaging used measures and separates each dose. Still, the fact remains that with barely any precedents, the outcome of any product liability claim involving marijuana is incredibly uncertain.
One thing that is known though is that many states are starting to address these concerns by staying ahead of them through mandatory product testing, enacting programs for traceability, and ordering product recalls in the name of safety and positive industry growth.
