Failure to Warn and Medical Marijuana
In an earlier blog post we commented on reports of higher numbers of birth defects in children born to mothers who used medical or recreational cannabis (marijuana) when compared with mothers that did not use cannabis early in pregnancy. In today’s post, the medical marijuana injury lawyer at The Doan Law Firm discusses the issue of who could be held liable for damages if they legally sold cannabis, or products derived from cannabis, to expectant mothers.
Although that THC (one of the active components of smoked or ingested cannabis) can cause damage to human DNA has been known to medical science for at least 40 years, only recently have studies liked THC to serious birth defects in children of mothers who used cannabis during pregnancy. In the above-mentioned blog post we reported on a study of birth defects in Colorado that found a 3 to 7 times greater rate of certain major birth defects in children of mothers who had used medical or recreational cannabis during early pregnancy.
Despite the fact that the use of many medications are restricted during early pregnancy because of their potential to cause harm to the developing child, no state that currently allows medical or recreational cannabis requires a warning label to be attached to cannabis that is legally sold in state-licensed dispensaries. In fact, and despite careful inquiries of dispensaries in states that allow medical cannabis, we have yet to locate a dispensary that even posts signs warning against the use of cannabis during pregnancy. Furthermore, we have yet to locate a dispensary that trains its staff regarding the potential dangers of cannabis use by expectant mothers. According to our medical marijuana injury lawyer, the failure to provide warning labels, post warning signs at a dispensary, and provide training to dispensary staff could be seen as evidence of failure to warn consumers of cannabis’ potential dangers to expectant mothers.
Under our legal system, failure to warn is an issue of strict liability. Strict liability is the legal doctrine that holds a party responsible for the damage caused by a product without the plaintiff (the person filing a lawsuit) being required to prove negligence or fault if the plaintiff can show that the product was inherently dangerous. As an example, if an outdoor gas grill is powered by propane that grill must come with easy to understand instructions for its safe use and warning labels or signs that call attention to potentially unsafe situations. Another example is that although tobacco products can be legally sold to adults, all tobacco products are required to carry warning labels describing the dangers associated with using such products.
In the case of birth defects linked to cannabis that was sold to an expectant mother by a state-licensed medical or recreational cannabis dispensary, strict liability could be applied to any individual or business that was in any way involved in the “supply chain” such as:
the individual, farm or nursery where the cannabis was grown
the individual or wholesale business that sold the cannabis to the dispensary
the dispensary itself
the sales clerk who sold the product to the expectant mother, particularly if the clerk told the mother that it was safe to use cannabis during pregnancy
Although the evidence linking cannabis use to birth defects is convincing, such evidence is rapidly evolving and may not take into consideration other factors. At The Doan Law Firm, our medical marijuana injury lawyer will continue to monitor the medical and scientific literature for further reports linking cannabis use to birth defects and will present updates through posts on this blog as they become available.