Thousands of cannabis companies, suppliers and manufacturers have been recently served with Proposition 65 (also referred to a “Prop 65”) notices. Historically, Prop 65 resulted in literally thousands if not tens of thousands of lawsuits against many different businesses and food supplies. Typically, a law firm would find a lead “plaintiff” who was ostensibly a concerned member of the public and file dozens and/or even hundreds of lawsuits in that person’s name. As a result of those claims, businesses were either forced to defend the lawsuits or pay money in “settlement” of those claims. Many commentators to the perceived abuse of Prop 65 by legal counsel felt in many instances the intent and purpose of the law was being abused by attorneys looking to effectively “shake down” companies and businesses for “settlement” money. In many instances, in representing clients we were able to prevail on claims against the clients in showing that their lack of a warning on a produce did not violate Prop 65. In other instances, settlements were negotiated based on the facts and/or financial circumstances of the clients.
It is yet to be seen whether the concentration of Prop 65 chemicals in any medical cannabis would require a Prop 65 warning. Ultimately, litigation may support many medical cannabis suppliers contentions that no warning is needed because the risk analysis does not trigger the need for a Prop 65 warning. This issue may come down to the proverbial “battle of the experts” in Court before it is decided.