
By Michele Brooke, Esq.
As cannabis strain-specific products (e.g., flowers, infused products, oils) become more popular, the importance of understanding legal warranties and disclaimers becomes vital. Where strain-specific products are being made available to medical marijuana patients (distinguishing them from recreational users), accurate labeling and warranties become an even higher priority. Even in states that do not have formal cannabis-infused food regulations, honest, non-misleading labeling, warranties, warnings, and disclaimers, still apply, and still must be properly affixed, or otherwise communicated, as required by your state’s law.
Accurate Labeling
Under California law, honesty in labeling is required to be in compliance with federal law and under California food and food retail laws. This means all consumables, even if made in a home kitchen, must be properly labeled. This requires product producers and product distributers to take a close look at the fine print. What does it say and what does it mean, if anything? Consumables include infused baked or food items, oils, dabs, waxes, etc. Honest labeling means that, if you put it on the label, it should be true and not misleading.
About a year ago, I met a business owner who was selling cannabis-infused pastries with a popular strain name on the package. When I asked him about the strain in his product, he informed me that they were not really using the strain on the label; the strain name was just a sales tactic. This is misleading labeling.
Up to now, not much attention to labeling has been given, but as the industry grows and, for example, the development of high-cannabidiol (CBD) products increase in market share, labeling will become even more critical (and more scrutinized).
Many are becoming aware of the trend toward medical marijuana patients seeking marijuana strains that claim to be high CBD. These seeds, plants, tinctures, and oils are becoming increasingly popular, and people will pay extra for them. For example, AC DC, Catatonic, Charlotte’s Web, or Harlequin strain- specific products may command more than a product containing Juicyfruit. This could open the door for unscrupulous persons, seeking top dollar, to mislead regarding strains they are supplying to manufacturers or dispensaries. This is serious. And it is advisable that suppliers and producers ensure their plants are genetically tested if a strain-specific product is the goal. Likewise, manufacturers should ensure THC/CBD or genetic testing has been completed by a reputable lab. Finally, dispensaries should seek written warranties from their suppliers or producers, to ensure the end product has an accurate label affixed, and that the label describes the genuine product to the patient–who may be relying on the accuracy and consistency of this product as medicine.
Express and Implied Warranties
Under California law, and likely under the law of your state if you live outside of California, the legal doctrines of express and implied warranty are important (and the fodder of more lawsuits than you might imagine). So, when it comes to the manufacturing or distribution of any product, these legal doctrines need to be on your radar.
An Express Warranty means an affirmative statement of fact about a product by the seller or, in California, for example, by the producing or supplying member to the patient, caregiver or dispensary. And that statement of fact includes or conveys some sort of warranty. For example, a warranty that a product was produced without pesticides, that it is not misleading about being a particular “famous strain,” that it was a “two-time Cannabis Cup winner” (when it wasn’t), or that it will have a particular effect (and there are no data to support that claim); these are untrue statements and warranties for which a supplier can be held legally liable. There is no room for puffery when we are talking about a person’s medicine. Integrity in labeling is vital.
Implied Warranties
Products also may have an implied warranty of merchantability and/or an implied warranty of fitness for a particular purpose. If there is no warranty implied or intended, a well-worded disclaimer may be appropriate.
An implied warranty of merchantability may arise from the transfer of a product by someone who deals in that product as part of their regular business, or if they hold themselves out as having special or particular knowledge in regards to a product. So, if a producing or cultivating member supplies medical marijuana to a dispensary, claiming to know all about the flowers, the strain, etc., they are creating a warranty of merchantability.
An implied warranty of fitness for a particular purpose may exist when the dispensary owner tells the supplier she is trying to provide strains for her patients who are suffering the effects of chemotherapy, and the supplier says, “XYZ Kush is perfect!” Based on his expressed expertise, the dispensary owner then purchases several pounds for her patients, based on the implied warranty that XYZ Kush will help her patients.
Disclaimers
Disclaimers in general are used to avoid or limit liability. Sometimes a disclaimer is appropriate, sometimes they are rejected by courts as a matter of law or public policy. Disclaimers are specialized; one size does not fit all. Discuss disclaimers for your products with your lawyer.
Labeling, warranties and disclaimers are as important in the marijuana industry as they are for any other product or service. And while the focus of this column is primarily on the integrity of the plant and infused products, they may apply to any product, from that amazing electronic bud trimmer to the infused protein shake. The bottom line is to value integrity and honest communication, and to give our patients, and ourselves, the safest, most effective products possible.
Michele Brooke is an attorney in California who practices civil litigation and civil cannabis law. She is a member of Americans For Safe Access, NORML and the American Herbal Products Association, Cannabis Committee. Visit her website:Â www.brookelawgroup.com