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Colorado Marijuana Users Legally Challenge Grower Over Pesticide

A Denver marijuana grower is the target of the first product liability lawsuit brought by consumers since Colorado became the first state to allow recreational pot use.

The lawsuit against LivWell Co., which sells the marijuana it grows for both medical and recreational use through nine retail stores, was brought by two customers who claim the company inappropriately used Eagle 20 on its plants.

Filed Monday, Oct. 5, 2015, the lawsuit follows recent reports about how Colorado marijuana growers have used some potent pesticides to control the spider mites and powdery mildew that come with growing pot indoors in one climate-controlled warehouse after another.

indoorpotgrowing_406x250Pesticide use on the year-round marijuana crop, mostly grown indoors for security reasons, hadn’t received much public attention until recently. But earlier this year, Denver quarantined 100,000 plants from 11 growing facilities in the Mile High City over pesticides concerns.

Last week, city health officials announced that they were quarantining hundreds more marijuana plants and inspecting labels for pesticides not approved for use on cannabis. Denver officials want marijuana grown with unapproved pesticides removed from retail outlets and either destroyed or returned to the grower.

State rules now require that marijuana products be labeled for pesticides, contaminants, fungicides and herbicides that have been used at any point in the production process — from seed to packaging.

Colorado’s first-in-the-nation recreational marijuana sales became legal on Jan. 1, 2014, with the state apparently unaware that the U.S. Environmental Protection Agency (EPA) did not maintain a list of approved pesticides for the growth of indoor cannabis. EPA was not in the business of providing instructions for raising crops still in violation of federal law.

With no EPA mandates on pesticide use for marijuana, the state was left with the Colorado Department of Agriculture to enforce the Pesticide Applicators’ Act. The trouble is that state law is based on EPA findings, so state agricultural officials had little choice but to negotiate a list of pesticides with the growers. And the list of pesticides available for use only became public once Denver stepped in with its own actions.

With the exception of the upcoming Nov. 3 ballot initiative in Ohio, Colorado’s new attention on the pesticides in pot seems to have had the effect of hitting the pause button on all those other states where the “inevitable” embrace of recreational marijuana was being predicted.

State legislative bills have mostly gone nowhere in 2015. According to Donna Lyons, group director at the Denver-based National Conference of State Legislature’s criminal justice program, 14 of 21 state bills to legalize recreational pot have failed. Bills remain alive in Massachusetts, New Jersey, Pennsylvania and Wisconsin, and Georgia, New York and Vermont bills will carry over to 2016.

“So far, 2015 is not shaping up to be the year that a state legislature legalizes adult-use recreational marijuana,” Lyons notes.

If Ohio voters approve, pesticide regulation may be more focused since the ballot measure gives the exclusive right to cultivate recreational marijuana to 10 specific facilities spelled out on the ballot.

Washington state joined Colorado in mid-2014 by legalizing pot for adult recreational use. Alaska and Oregon had similar ballot measures adopted by voters last year, along with the District of Columbia. Retail recreational marijuana sales in those three places just got underway on Oct. 1.

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