In a case with potentially massive implications for the legal weed industry, a new lawsuit alleges pot edibles were responsible for the death of a Colorado woman shot by her husband. While several incidents involving THC intoxication have had tragic consequences since legalization went into effect in the state two years ago, this is probably the first case to allege the manufacturers bear direct responsibility, as the Denver Post reports.
On April 14, 2014, Kristine Kirk, 44, called 911 out of fear for herself and her sons. Her husband, Richard, appeared to be having a psychotic episode, jumping in and out of first-floor windows and claiming the world was ending. Minutes later, a single bullet left Kristine dead, and her children—now 9, 13, and 15—alone, struggling to pick up the pieces.
The lawsuit, brought on behalf of the children by their grandparents Wayne and Marti Kohnke (and their aunt Tamara Heman), claims that not only did the candy Richard Kirk ate drove him to commit the heinous act, but that he was never made aware of the dangers of ingesting the pot-infused treat. "Edibles themselves are not the evil," attorneys Greg Gold and David Olivas said in a statement released to media. "It is the failure to warn, the failure to properly dose, the failure to tell the consumer how to safely use edibles that is the evil."
For their part, the defense is predictably dubious about tracing the actions of a killer back to the companies behind a pot candy.
"I'm looking at the actual label right now, and it does say there may be health risks associated with the consumption of this product," says attorney Sean McAllister, who represents Gaia's Garden, manufacturer of the edible in question and one of two defendants named in the suit. (The other is Nutritional Elements, the store that sold it to Kirk.) McAllister believes the case will ultimately come down to product liability law, but also plans to raise questions about the killer's mindset at the time.
"A defendant's voluntary intoxication is not a defense to a crime," McAllister continues in our phone interview. "So if a guy goes out, gets drunk, and steals a car, you don't get to say, 'I'm not liable for stealing a car because I was drunk.'" The attorney also says there was nothing defective about the product, with most reasonable adults understanding that consuming marijuana will result in intoxication. (Kirk changed his defense to not guilty by reason of insanity last September, and was reportedly set to undergo a mental health evaluation at the Colorado Mental Health Institute at Pueblo before trial.)
Experts within the recreational pot community, however, are concerned the legal action could have a serious impact on the nascent industry, even if it's defeated. Jamie Lewis, founder and CEO of Mountain Medicine, has worked with state regulators in the past and portends a contentious upcoming legislative session. "We'll likely have to spend more money on forced regulations mandated by the state," she tells me. "Legislators will come in with these inflammatory articles about one or two very tragic incidents, but still just one or two compared to the volume that dispensaries sell."
As chair of the Cannabis Business Alliance, Lewis was one of the champions of the "Start low. Go slow." campaign that aimed to bring consumers up to speed about the potential dangers of overconsumption. He says 250,000 pamphlets were distributed covering topics such as recommended dosage and how to properly store them in the wake of a rash of negative incidents, such as a 19-year-old Congalese exchange student leaping to his death from a hotel balcony in 2014.
"We'll probably end up having to spend money on different packaging requirements or labeling when that money really should be going to education," Lewis adds. "Right now, I need to figure out where I stand with liability insurance."
Debate has raged at the state capitol over edible marijuana products for years. In addition to a longstanding 100mg limits limit on THC (the psychoactive compound in cannabis) in a single package, lawmakers have imposed new serving size rules, as well as packaging requirements aimed at preventing use by children. In April, House Bill 1436 was introduced to ban candies in the shape of animals or fruits, drawing the ire of many in the industry. Very few of these efforts, industry insiders argue, are practical with both medical and recreational marijuana becoming more popular nationwide.
"I wouldn't be surprised if there were a conservative state down the road that strongly considered a ban on edibles," says Kayvan Khalatbari, founding partner of Denver Relief Consulting, a firm that advises cannabis businesses in nine states and Canada. "But in medical states, it's these edibles that are preferred over smoking or concentrates, so something has to give."
As medical marijuana continues to spread—it is now law in 24 states and the District of Columbia—some states have banned the sale of smoked marijuana entirely. In New York, for instance, only vaporized cannabis or capsules are legal for consumers, leaving patients with edible marijuana as one of their two choices. "I can certainly see more restrictions being placed on [edibles] such as having each individual dose individually packaged and egregious warning labels, says Khalatbari, "which I think will prove to be rather unnecessary as cannabis establishes itself in mainstream society and education becomes more widespread."
Still, tales of hallucinations and psychosis triggered by edibles may set back those education campaigns—and some entrepreneurs' bottom lines—suggesting as they do that in the wrong hands, marijuana can be quite dangerous.
In some cases, you can expect to hear in the months ahead, it's practically murderous.
Jake Browne is a freelance contributor to the Cannabist and former managing editor of CULTURE Magazine. Follow him on Twitter.