Marijuana is now legal for medical purposes in about twenty States and for recreational purposes in two (Colorado and Washington). New York appears poised to follow suit, at least for medical purposes. That makes for a lot of legal pot smoking. But not everyone who wants, or medically needs, marijuana’s effects likes to smoke. So marijuana stores are stocking up on tasty ways for customers to eat their way to that same high, including gummy bears, dew drops, chocolate truffles, and other sweets all laced with mind-altering THC. Some of them contain ten times as much psychoactive THC as a casual pot smoker might take.
So what’s the problem? Once a customer removes these goodies from their carefully labeled “marijuana” bags or boxes, they look just like the sweets commonly available in any grocery store candy aisles. They don’t look like a drug. In fact, they look like pretty tasty treats. They then become an “attractive nuisance” to the unwary and hungry. Small children are especially attracted to the colorful delicious looking candies or chocolates. Unsolicited, unexpected highs are bound to happen.
This is not just a hypothetical problem. The New York Times reports that a growing number of children are seeking treatment after accidentally consuming marijuana. The children, many of them toddlers, are taken to the ER because they seemed strangely sleepy and disoriented.
It is true that marijuana, even if consumed by children in high doses, poses no life-threatening dangers. But that doesn’t mean it’s “harmless”. Children or even adults who don’t know why they are feeling so strange might suffer fear, panic, emotional turmoil (“am I going crazy?!). They are also at risk of falling and hurting themselves or of getting into a car accident because they got behind the wheel not realizing they were going to end up stoned.
When they go to the hospital and are eventually diagnosed with – well – being stoned, there’s no antidote — they just have to lie back and try to enjoy it.
But what if they DON‘T enjoy it? Assuming there’s no car accident or trip-and-fall, can they sue someone simply for having been subject to an unwanted high? Or can they sue on behalf of their young child if he or she unwittingly consumes some of these THC laced sweets? And who would they sue? The manufacturer, the store, or the friend who accidentally left them lying around, unlabeled?
If I were representing such a plaintiff, I would sue all of the above. I would sue the manufacturer and store for failure to warn. I would argue that they had a duty to somehow distinguish their product from regular food products with some kind of engraving or stamp on the chocolate or gummy so that even without packaging they would be distinguishable. Or they could shape all the sweets into the highly recognizable cannabis leaf form. I would also sue the “friend” who left these “sweets” out and about with no warning. How careless! His or her homeowner’s insurance should provide coverage.
The real question, though, is, what is such a case worth? Can you, or your child, get any significant monetary compensation for an unwanted, even frightening, high? Would the likely verdict merit the long and hard-fought litigation? We’ll have to wait and see how these cases shake out. Some brave personal injury lawyers will bring the first few cases while the rest watch and wait. Those first few verdicts will give us a kind of “pulse” on the jury value of such cases. Then we’ll know whether they are worth the trouble and risk.
Email me at: firstname.lastname@example.org I’d love to hear from you!
Michael G. Bersani, Esq.
michaels-smolak.com Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.