Omar Juarbe inspects the hundreds of marijuana plants at LivWell in August. In October, LivWell was sued by a pair of users over alleged use of a potentially dangerous pesticide. (Denver Post file)

Colorado’s largest pot grower sued by two consumers over pesticide use

Updated Oct. 13, 2015 at 11:48 a.m. This article has been updated with a statement from LivWell regarding the lawsuit.

A pair of marijuana users in Colorado — one of them a medical-card holder with a brain tumor — have sued the state’s largest pot grower for allegedly using a potentially dangerous pesticide on the pot they later purchased.

The lawsuit against LivWell Inc. by Brandan Flores and Brandie Larrabee seeks class-action status and alleges the company for years inappropriately used Eagle 20, a heavy-hitting pesticide with myclobutanil that kills a variety of pests endangering the plants.

Flores lives in Denver and Larrabee is a Grand Junction resident.

Neither alleges they were sickened from ingesting marijuana they purchased at LivWell, but each said they would not have inhaled the product if they had known it was treated with Eagle 20.

“In a larger sense they’re saying the marijuana industry can’t go on unchecked and someone has to do something to stop these people from using Eagle 20 and other harmful pesticides,” said Steven Woodrow, their attorney.

The two claim damages for an unspecified amount of money they overspent to buy the marijuana they say should have sold for a lesser price because of the pesticide.

The 40-page lawsuit filed Monday in Denver District Court says the fungicide myclobutanil, when heated, breaks down to “poisonous hydrogen cyanide” and alleges that consumers who smoke marijuana treated with Eagle 20 ingest the gas.

The lawsuit is the first to be filed against a marijuana company over pesticide use and highlights the ongoing debate over what is and is not safe to use.

Federal law does not specifically allow any pesticide to be used on marijuana, although state agriculture officials have devised a draft list of products they say are allowable.

Eagle 20 and myclobutanil are not on the list.

The lawsuit alleges LivWell used Eagle 20 early this year even though the state’s draft list of approved pesticides did not allow for its use. The draft list was not made public until March.

“We believe that the people behind this effort do not want the commercial cannabis industry to succeed, and that LivWell was targeted because of its success,” Dean Heizer, LivWell’s chief legal strategist, said in a statement issued Oct. 13. “The facts are that we have never used a banned substance in our cultivation. We believe the … litigation is scientifically, legally and factually frivolous, and we will defend it vigorously.”

The Denver Post on Sunday showed how state officials have not pushed for stronger pesticide regulations amid pressure from the marijuana industry and a lack of guidance from federal regulators.

“We’d not be talking today if the state had acted quickly to protect consumers,” Woodrow said.

LivWell was one of 10 businesses whose marijuana plants were quarantined by the Denver Department of Environmental Health in March and April over concerns they were treated with unhealthy pesticides.

LivWell accounted for about 60,000 of the more than 100,000 plants quarantined, the lawsuit alleges.

Although myclobutanil is used on other food crops, there are no allowable levels for it on marijuana because it is an illegal crop under federal law. City health officials, however, allowed the plants to be released if tests showed only the lowest allowable levels of the chemicals.

“Myclobutanil is not on any product you will consume through inhalation,” Woodrow said. “On a grape it doesn’t break down into cyanide.”

All of LivWell’s quarantined plants have been released to date, according to city health officials. LivWell officials have said they no longer use unapproved pesticides.

“Simply because the plants did not have ‘pesticide residue’ does not necessarily mean that the plants were safe for inhalation,” the lawsuit alleges.

The lawsuit alleges LivWell breached an implied promise to consumers when it sold high-grade and medical-grade marijuana treated with unapproved pesticides

David Migoya: 303-954-1506, or @davidmigoya

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