Infestation by mildew, parasites, fungus, mites, bacteria, powdery mildew and other biological agents can spell disaster for a cannabis crop. Unchecked, an infestation can destroy an entire grow room worth of crops. With each crop representing thousands of dollars of investment, it is understandable that many marijuana entrepreneurs will use any means available to save an at-risk crop, including dousing it with gratuitous amounts of chemicals to kill invading organisms. Although using pesticides in such cases might seem like a sound business decision, it could actually open the doors for lawsuits and unwanted regulatory attention. Oregon politicians Andy Olson and Jeff Barker, state in their opinion piece, “Marijuana Regulations Must Cover Pesticide Use”, that people who use medicinal marijuana may already have compromised immune systems and are those least able to bear exposure to a tainted product. Additionally, as with any other product, anyone in the product’s chain of distribution (including marijuana growers, processors and retailers) can be held liable for a defective product under products liability law, as described in Alison Malsbury’s article, “Inaccurate Marijuana Testing Will Lead to Lawsuits.” Given that marijuana is consumed through edibles, by smoking and even through topical application to the skin, there are a number of ways that unregulated pesticide use may put consumers at risk.
As further proof that these concerns are more than merely hypothetical, on April 24, 2015, officials from the City of Denver’s Department of Environmental Health quarantined 60,000 plants produced by LivWell, Inc., a Colorado-based grower with 2015 revenues projected to exceed $80 million (“LivWell”). The plants were tested by a state-licensed lab and found to be acceptable within the limits for vegetation and officials eventually released them to LivWell to sell. Nonetheless, on October 6, 2015, two Colorado marijuana users (one of whom has a brain tumor) recently sued LivWell for unspecified damages, claiming, that Eagle 20, a fungicide that the LivWell used, was “patently dangerous” when used on a product that is likely to be consumed through heating and combustion. In the complaint (full text here) the plaintiffs reference the fact that Eagle 20 has not been approved for use with tobacco products. The plaintiffs, neither of whom allege that they were sickened by ingesting the marijuana, seek class action status and relief based on LivWell’s use of Eagle 20 and failure to disclose its use to consumers as violations of common law. This case is the first marijuana product liability claim in the U.S. since marijuana has been legalized.
Historically, pesticide producers and scientists have not been incentivized to research pesticides for use on marijuana plants because of its largely illegal status as a Schedule I controlled substance, illegal to cultivate, manufacture, distribute, and possess under the federal Controlled Substances Act. Until recently, there was also a regulatory gap with regard to pesticide use on marijuana. However, recently the S. Environmental Protection Agency (“EPA”), the agency responsible for regulating pesticides at the federal level, has taken steps toward solving this problem (i.e., no pesticides are approved for use on marijuana at the federal level, which makes any application of a pesticide to marijuana a violation of federal law).
On May 19, 2015, in response to an inquiry by the Colorado Department of Agriculture’s Division of Plant Industry, the EPA offered guidance to Colorado (which presumably apply to other states that have legalized marijuana cultivation) regarding use of pesticides in marijuana production. Now, states may develop guidelines for special local need registrations under which growers may apply to register certain marijuana-related products as a “Special Local Need” as defined under section 24(c) of the Federal Insecticide, Fungicide and Rodenticide Act. Special Local Need registrations are a state-based process designed for local pest problems or minor crops, where an addendum to a pesticide’s registered use label is more practical than the full EPA registration process.
According to the EPA guidance, to have a marijuana pesticide approved as a Special Local Need, a manufacturer would need to demonstrate that a federally registered pesticide would be regarded as having similar use patterns if the federally registered pesticide is approved for use on: (i) food; (ii) tobacco; (iii) by the same type(s) of application methods; (iv) on crops with agronomic characteristics similar to cannabis; and (v) in the same kind of structure (e.g., greenhouses/shadehouses) or on the same kind of site.
The section 24(c) special local need registration process could provide a way forward for states debating how to establish guidelines for marijuana pesticide use without violating federal law by giving latitude to the state to regulate and avoiding a requirement for the EPA to approve the registrant, instead the EPA simply must not object to the pesticide use. A Special Local Need registration also usually requires far less time and money than a full EPA pesticide registration, according to Joel Warner’s article, “Marijuana Legalization 2015: EPA Issues Guidance On Marijuana Pesticides Amid Industry Uncertainty.” The EPA also encourages states to consider pesticides for which the EPA’s “aggregate and cumulative risk assessment indicate that some modest additional exposure would not approach a risk of concern.” Finally, if a state decides to pursue a special local need registration for use of a pesticide on cannabis, it could prove that such registration is appropriate by relying on the EPA’s most recent risk assessments showing that the pesticide meets the no “unreasonable adverse effects on the environment standard.”
It remains uncertain how states will react to the EPA letter. So far, at least the Colorado and Washington Departments of Agriculture have developed guidance on submitting an application for a section 24c special local need registration to allow the use of a pesticide on marijuana. States will need to formulate tests for measuring pesticide residues in buds or edibles sold in stores, as well. To avoid the pitfalls of unauthorized pesticide use, marijuana entrepreneurs should consider exploring whether they may avail themselves of the new developments in special local need registration.