Last October, we told you about a class-action lawsuit filed against LivWell Englightened Health dispensaries based on its alleged use of a pesticide called Eagle 20 "in the first quarter of 2015 and likely for many months, if not years, earlier."
The substance is described in the suit, seen in its entirety below, as a patently dangerous fungicide that releases hydrogen cyanide when burned while smoking cannabis.
But yesterday, LivWell announced that it had been notified of the suit's dismissal on grounds that included a failure by the plaintiffs, Brandan Flores and Brandie Larrabee (represented by marijuana attorney Rob Corry), to show that they'd sustained injuries in the legal sense of the term.
In a statement, LivWell owner and CEO John Lord says, “We have felt all along that this lawsuit was a public relations ploy intended to smear our name. The people behind this case do not want the commercial cannabis industry to succeed and will try anything to bring down the industry. We remain committed to following all state and local regulations, and to providing our customers with the best product, value and shopping experience in the state.”
As we've reported, a May 18, 2015 Westword post was cited in the lawsuit; the piece found our Thomas Mitchell reporting about documents obtained via the Colorado Open Records Act by the Cannabis Consumers Coalition that touched on dispensaries suspected of using Eagle 20. Concerns about the substance are highlighted in this excerpt:
Used to fight powdery mildew on plants, Eagle 20 has become a subject of debate among cannabis growers because of its unknown long-term effects. A 2012 study by Dow AgroSciences showed that Eagle 20 contained numerous chemicals that had caused cancer in lab animals, but whose effect on humans has not been documented. The lack of conclusive science regarding pesticide and cannabis has created a gray area for regulated pot cultivation.
Because marijuana is illegal on a federal level, few pesticides have been created specifically for it, and states in which cannabis has been legalized have to do their own research on what's harmful and what isn't. Neither the Environmental Protection Agency nor the U.S. Department of Agriculture lists pesticides that may be used by marijuana grows; nor do they list prohibited pesticides. While the Colorado Department of Agriculture does not have a list of pesticides banned for cannabis cultivation, there is a CDA-approved list of marijuana pesticides that regulated growing operations in the state are supposed to follow. The approved list, last updated April 30, does not contain Eagle 20.
LivWell was the first dispensary to be publicly linked to Eagle 20 use, with around 60,000 plants held back in April after health officials worried that LivWell's use of Eagle 20 could make the resulting marijuana unsafe for consumption. However, inspectors subsequently gave the all-clear.
Afterward, LivWell owner Lord released a statement that reads: "Testing of our finished product by an independent, state-licensed lab approved by the City of Denver showed that our products are safe – as we have always maintained. We have reached an agreement with the City resulting in a release of the hold order on the tested products and all similar products. More importantly, over the last two weeks, we have been working hand-in-hand with the Denver Department of Environmental Health to design and implement what we hope will be an industry standard testing regime to ensure safe cannabis products. We are proud to be able to meaningfully contribute to the standards that will ensure public health and safety moving forward."
Despite Lord's statement, numerous Cannabis Consumers Coalition members picketed a LivWell location on South Broadway later in May. In response, Lord issued another statement about allegations that LivWell's products could be dangerous: "These accusations are thoroughly inaccurate and highly misinformed. Had any one of these eight people reached out to us directly to have this discussion, we would have welcomed the opportunity – and we still do. We currently do not use any compound in our grow that is of concern to the City of Denver, nor are we trying to inappropriately manipulate or influence which compounds they approve for use. We, along with multiple other grows, are openly working with the City and the State to ensure that both the compounds used and the end product delivered to consumers are safe. This includes an open discussion about what food-safe compounds can be used to prevent harmful molds and other naturally occurring contaminants from being in any end product.”
Corry, who describes himself as "one of the fathers of the Colorado marijuana industry," wasn't satisfied with this response. Hence the lawsuit targeting LivWell.
"The company that manufactures Eagle 20 says this chemical is not for use on anything consumed by human beings," he told us in October, "but it wasn't used as intended — which is why we're not suing the manufacturer. They didn't do anything wrong. But LivWell used it improperly. They admit they used it, and our goal is to correct this moving forward. This is not a sound practice for this industry, and we need an industry we can be proud of here in Colorado.
"The government is obsessed with regulating this industry," Corry added, "but it won't regulate where it actually affects the consumer and the consumer's health. So we're going to use the court system to do it" — and he suggested that as many as a ten similar complaints might be filed against other marijuana businesses over pesticide use.
The first one hit a legal wall, however. According to LivWell, the Denver District Court ruling stated in part that “there are no allegations the product did not perform as it was supposed to, and indeed the Complaint alleges that Plaintiffs consumed the product.”
“Consistent with our previous statements, this case was nothing but an improper and abusive attempt to injure our business,” LivWell chief legal strategist Dean Heizer said in a statement of his own. “As the court noted, ‘plaintiffs cite[d] no cases supporting their position,’ and the case lacked both factual and legal merit.
"We are currently considering our options, which include pursuing the plaintiff’s counsel and their clients for attorneys’ fees, costs and abuse of process," Helzer's statement continues. "We look forward to continuing to provide wholesome products to our patrons, and we thank the thousands of patients and customers who supported us through this process.”
We've reached out to attorney Rob Corry for a response. Once he gets back to us, we'll update this post.
Look below to see the original complaint, followed by Denver Department of Environmental Health documents about the initial pesticide investigation.