Brandan Flores is a careful shopper. The 24-year-old raw vegan avoids chemicals and additives in the foods he eats, and he approaches his recreational marijuana purchases the same way. He asks budtenders about the cultivation practices behind the weed they sell and quizzes them on whether their marijuana concentrates are made using butane, carbon dioxide or water.

That's why he was appalled when he heard last April that LivWellone of Colorado’s largest marijuana chains, had sprayed its plants with Eagle 20, a petroleum-based fungicide that’s used on crops like hops and fruit trees but not on plants like tobacco, since it releases hydrogen cyanide, a toxic gas, when burned. Flores had frequented a LivWell shop near his home, and he’d purchased a quarter of an eighth of high-CBD marijuana for smoking from the store in early 2015. When he heard about the fungicide, which is a type of pesticide designed to kill fungi, he threw out what he had left from the purchase and told his friends to stay away from LivWell. He hasn’t been back since.

“It’s something that was really scary for me,” he says. “I didn’t ask to put cyanide into my body.”

Brandan Flores Brandan Flores is one of two main plaintiffs in what is the legal marijuana industry's first class-action lawsuit. Photo: Brandan Flores

Flores and a Colorado medical marijuana patient named Brandie Larrabee are the main plaintiffs in a class-action lawsuit filed in Denver District Court Monday morning against LivWell, demanding that it stop using Eagle 20 and seeking compensation over its use of the product in the past. The filing is the U.S. marijuana industry’s first class-action suit, although it surely won’t be the last. The lawyers behind the move say similar suits are on the horizon for other Colorado marijuana companies who used fungicides and other pesticides on their crops, and they estimate the number of plaintiffs involved could eventually reach into the thousands.

Dean Heizer, LivWell's executive director and chief legal strategist, said Monday morning that he was not prepared to comment about the suit because he had not seen the filing. But whether this particular lawsuit is ultimately seen as consumers fighting for product safety or a frivolous money grab, its arrival is far from surprising as the marijuana business matures. After all, whenever there's money to be made and lost, somebody is bound to get sued.

Pesticide Problems

The new lawsuit is the latest salvo in the industrywide tumult over pesticide use on marijuana. Since marijuana remains illegal at the federal level, the Environmental Protection Agency has yet to weigh in on which pesticides can be labeled for cannabis use. While the EPA offered a workaround in June that allowed certain pesticides to be approved for cannabis in states where medical or recreational marijuana is legal by registering them as a “Special Local Need,” so far no cannabis-specific products have been officially approved. And while agricultural agencies in states like WashingtonColorado and California have provided guidance on what sorts of pest-control measures can be safely and legally used on marijuana, most of the options aren’t powerful enough to stave off major infestations. That’s a worry when you have a crop worth hundreds of thousands of dollars on the line.

Little wonder, then, that some growers have turned to unapproved pesticides to protect their plants. Newspaper investigations in Oregon and Colorado have found marijuana products being sold with traces of pesticides not permitted for cannabis. And over the past year, Denver health officials have repeatedly recalled or quarantined marijuana crops and marijuana-based products suspected of being harmful to consumer health and safety. LivWell, a large chain with a massive growhouse and 11 stores around the state, was among the operations singled out. In April, the city quarantined 60,000 of its plants over concern that its grow operation used Eagle 20. Those plants were eventually released once tests found chemical residues within acceptable limits, and LivWell announced it discontinued use of the fungicide. But that didn’t stop a marijuana consumer group from protesting in front of one of LivWell’s locations.

Pesticide protest A May 30 Denver protest over pesticide use on cannabis plants. Photo: Jose Silva

The quarantine was also the impetus behind the new class-action lawsuit. Steven Woodrow, one of two attorneys behind the suit, says LivWell grow logs obtained through an open-records request showed that the company used Eagle 20 at least between January and March 2015. And while residue tests might have ultimately cleared the company’s plants, Woodrow argues that doesn’t mean they were safe for public consumption. The complaint filed today notes that myclobutanil, the active ingredient in Eagle 20, is readily absorbed by the plant, which means the chemical could still be present even when surface residues are negligible. According to the lawsuit, myclobutanil and its metaboltytes would also still be present when the marijuana is smoked – and this combustion could cause the compounds to release hydrogen cyanide and other toxic chemicals.

“Our science shows that once this chemical is applied to the plant, it becomes part of the plant,” says Woodrow. It’s why he argues that LivWell’s subsequent assurances that its formerly quarantined crops were innocuous were dangerously misleading. “Companies aren’t allowed to put dangerous chemicals into the stream of commerce and then make misinformed comments to the public that they are safe for consumption,” he says.

Breach of Warranty

The class-action lawsuit developed by Woodrow and his fellow Denver attorney Robert Corry, however, doesn’t make a claim for personal injuries, along the lines of lawsuits filed against tobacco companies for concealing health risks or corporations for exposing workers to asbestos. That’s likely because it’s too soon to see direct health effects of the fungicide-laced marijuana. “If someone believes they suffered physical impairment or injury because of this, this litigation does little to cover them,” says Woodrow.

Instead, the lawsuit is all about breach of contract. According to the complaint, LivWell violated what’s called the implied warranty of merchantability for the products it sold, meaning that the goods didn’t meet consumers’ reasonable expectations that they would be fit for normal use. Warranties of merchantability are often used in lawsuits against automobile and electronic manufacturers when products don’t work as they are supposed to. In this case, says Woodrow, LivWell’s plants weren’t fit for consumer inhalation, meaning his clients paid an unreasonable price for the product.

“This is a breach of warranty claim,” he says. “Here the ordinary use of the recreational and medical cannabis was to smoke it, and here it was not fit for that… This is about people overpaying for cannabis, overpaying for a products that aren’t worth anything, or worth substantially less than what they were charged.”

It will be up to the courts to determine whether, considering the lack of federal regulations on marijuana pesticide use, cannabis consumers were justified in expecting their purchases to be wholly safe for consumption. But if the lawsuit moves forward and concludes one way or another in the plaintiffs’ favor, Larrabee and Flores would be looking at a comparatively small reimbursement for the marijuana they purchased from LivWell, plus any incentive fees awarded to them by the court for leading the class-action suit. But for LivWell, those reimbursement fees could add up. Woodrow says Flores and Larrabee were chosen specifically to represent LivWell’s medical and recreational costumers. “LivWell has sold to thousands of consumers,” he says. “We have representative plaintiffs who stand in the shoes of everyone else.”

While LivWell was singled out in this lawsuit because, Woodrow says, “they are one of the biggest offenders from our research to date,” it likely won’t be the only Colorado company facing such a legal challenge. “Others are certainly on the way,” he asserts.

'I Don’t Care About The Money'

Sam Kamin, a marijuana law professor at the University of Denver, says tort claims like this were bound to happen -- and that no matter the outcome, it’s likely a promising sign for an industry aiming for legitimacy. “Would heroin junkies sue their dealer over a bad batch? No,” he says. “They wouldn’t want to out themselves as junkies and they wouldn’t really expect to get money at the end of the day. This suit shows the maturation of both sides of that equation. People are willing to sign off as wronged marijuana users and they think that the taxpaying, regulated businesses they’re suing might actually pay up at the end of the day.”

Woodrow, for one, thinks LivWell and other cannabis companies could end up paying handsomely. But he insists that’s not the point of the suit. “There could be millions at stake, but that is not our goal,” he says. “We aren’t trying to put anyone out of business. Our goal is to make the public safer and make sure these dangerous products aren’t sold to anyone else.”

Flores says that’s why he signed on as a main plaintiff in the lawsuit. At first, he was wary about the exposure, since he works as a broker for a Denver-based insurance company and didn’t want to lose his job over the issue. But for years, he’s been a marijuana activist, attending protests and working with pro-cannabis organizations. And he sees this lawsuit as part of his advocacy.

“I don’t care about the money; I care about actual people,” he says. “You can protest in front of businesses and tell people not to go, but unless you take real action like this, nothing is going to change. As much as we protest, it will not change anything like the courtroom can.”