Marijuana has entered the legal world in more ways than one. Trial lawyers across the country are studying the marijuana business to prepare for lawsuits against it. Whether you are a fan of marijuana or not, the fact is that legalization of a widely used drug will bring many consequences that we will not understand until they are upon us. Like tobacco and opiods, the final battle for or against marijuana will take place, not in doctor’s offices or the legislature, but in the courtroom.
This is a blog about marijuana torts. A tort is a lawsuit that is filed against someone for causing a harm. For example, causing an injury through careless driving is a tort. Causing an injury intentionally, for example by vandalizing someone’s property is also a tort. The remedy for a tort is usually a monetary judgment. Torts involving marijuana will likely skyrocket as the states begin to understand he contours of legalization.
One area will be in negligent dosages. For example, products which cause reactions in the human body must be labelled in such a way as to avoid harm. Alcohol must have labels showing their alcohol content. A seller would be negligent if he sold 80 proof alcohol as a product that was labelled as not containing alcohol. A medical company would be negligent if it sold a medicine that did not describe common side effects. Marijuana is difficult in this regard because the testing regime is not established. If someone bought a low THC product that was in fact an extremely high THC product, would the marijuana seller be liable if that person died while doing something he thought he could do while a little high, but not completely high? Could a case be made that he would have been able to do it at the dosage that he thought he was taking but not at one which was one hundred percent higher? Compare it to common products, such as sleeping pills, which clearly make the seller liable for mislabelling. An issue will be what steps the marijuana seller took to determine and label the potency of the product. Some store hire independent labs to test and label. Others do not. Can they trust a grower to tell them an approximate potency?
Another area of law will be the existence of the grey market in marijuana. In many states that legalized early, the gray or even black markets have boomed. This is because those who sell illegally face little or no risk of prosecution, but they are also obviously not bound by quality or price controls (or taxation), so they can create a more powerful product and sell it cheaper. They have lower overhead also. Will a licensed seller be liable for the actions of unlicensed dealers in the same retail space? Or will licensed dealers have to sue to remove them in order to keep their own businesses viable.
Lastly, there is the problem of illnesses caused by marijuana. Obviously, smoking anything is bad for the lungs. Low birthweights and other problems can appear when women use marijuana during pregnancy. The long term effects on children and adolescents are still unknown. It seems clear that marijuana will not be completely harmless and entirely helpful, any more than any substance can be. When the problems are understood, expect those harmed to file lawsuits, just like they would with any drug. In conclusion, legalization is the end of a social movement, but the beginning of a legal study that will be playing out in the courts for many years to come.