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Clearing Up the Haze Surrounding Cannabis Product Liability Risks

By Susan Preston, T.J. Frost
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When a thriving cultivator purchased additional cannabis from a wholesale grower to meet the 5,000 pounds he was short, he was left holding the bag. A customer complained of a strong sulfur taste, and soon it was discovered that the wholesaler had applied the wrong pesticide concentration, rendering the cannabis unusable. The cultivator had to pull contaminated cannabis product from the shelves, a move that cost the company $3.5 million.

This story is not unique. When running short on product, cannabis businesses will often turn to other suppliers and partners to help them fulfill their orders. Unfortunately, improper vetting and a lack of understanding and compliance with state regulations and other requirements may lead to a loss of product integrity and costly product liabilities. Product liability can include more than just the cannabis itself, such as the equipment – vape cartridges, batteries, and lighters. This can quickly inflate the risk and, of course, the cost of a product liability claim. It is possible to transfer some of these cannabis risks to product liability insurance.

Top Three Product Liability Exposures Facing Cannabis Cultivators and Distributors

Three key areas of product liability exposure face cannabis business owners. It’s important to understand how each will affect your business.

  1. Product contamination.When cannabis is sold in an edible form, business owners could face claims of food poisoning or illness. If the product is smoked, there are exposures to contamination, product mislabeling or misrepresentation, and possible health hazard claims related to long-term exposure to potential contaminants.
  2. First party claims. Claims made in the event of an accident, injury or loss, whether caused by the business owner or someone else, will create another set of exposures, including manufacturing defects, failure to warn users on potential product usage hazards, improper labeling, or any product-related defect such as mold or odor.
  3. Third party claims. Cannabis business owners could be liable for claims stemming from the use of their cannabis product that result in a DUI, property damage, loss of wages, medical expenses and bodily injury.

It is possible to transfer some of these cannabis risks to product liability insurance. While there are multiple lines of product liability insurance, you’ll want to make sure you choose one designed specifically for the cannabis industry. These policies may provide coverage for the following exposures:

  • Product contamination
  • Bodily injury damages
  • Fines and penalties for non-compliance with state regulation
  • Bodily or property injury caused to others by product misuse, or by a third party
  • Manufacturing or product-related defects

While product liability insurance covers a number of cannabis risks, it doesn’t cover them all. Cannabis operations require a variety of coverage – property, crime, general liability, worker’s compensationand crop insurance. Insurance carriers will differ in definitions, policy exclusions and coverage language for each policy.

Because designated cannabis product liability and business operations coverage is fairly new and the marketplace features a wide range of options, make sure to work with a broker who understands the fine print of your policies, and your unique needs. The right broker can provide advice and loss control to help you reduce product liability exposures, make product and risk management recommendations that best mitigate your exposures to prevent loss, and ensure the proper coverage to address potential claims.

Blockchain Controversies Continue To Rock The Cannabis Industry

By Marguerite Arnold
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Disclaimer: Marguerite Arnold is the founder of MedPayRx, a blockchained ecosystem that does not use utility tokens, and that is currently going to pilot in Europe designed to eliminate such risks.

As reported here in Cannabis Industry Journal last year in a three part series, there are considerable dangers of utilizing blockchain in the cannabis industry (as well as other industry sectors) that directly affect all commercial operators as well as consumers of both the recreational and medical kind. These remain largely unsolved.

These include regulatory and compliance issues in every direction, starting with banking and securities law, but also include privacy and consumer protections. They also fly in the face of regulations imposed by governments to control inflation, set prices for medications and food, and prevent monopolies.

Beyond that, they also pose considerable if so far unexamined liabilities for businesses operating in this space (including uncontrollable volatility in basic business operations) that very much impact the basic cost of doing business.As of the beginning of this year, however, the situation is back in the news. 

The Skinny On Paragon
As of November last year, the company was sanctioned by the SEC in a precedent setting case on the issue of whether “utility tokens” are securities or not. In fact, the SEC found that Paragon illegally marketed and distributed digital securities under the false pretension that they were not securities. Paragon, in turn, reached a settlement with the SEC that it would return any funds received by investors prior to October 15, 2017 and pay a fine to the SEC.

As of the beginning of this year, however, the situation is back in the news. Because of the settlement agreement, it appears that a pump and dump group operating through the exchange YoBit managed to raise the token briefly from about $.10 a token to $10 in an effort to raise the cost of compensation from Paragon. This absurd rally was completely unsustainable, and as a result, fell back to $0.3 per token (albeit tripled the price of the token). But the fact that it happened at all is illustrative of the extreme risk now faced by the industry itself from this kind of tech and financial model.

Why? It means that all users (token holders) of such an ecosystem and for any purpose, would be directly exposed to such risks in the future. And on literally an hour-by-hour basis.

Utility tokens in other words, as defined by all such models (and Paragon is far from the only one), are used not only for investment in such businesses, but then bought downstream, via exchanges, by people who wish to transact in the network itself. And that is the real danger to businesses themselves by adopting such models.

Problem 1 – Utility Tokens Are Securities

The biggest issue at the heart of this conversation is this: Tokens are recognized now as securities, and further still operating in a world where pump and dump on the exchanges is a major liability for all who buy the tokens for any purpose. This means for example, that anyone who must buy a system cybercoin to transact within a blockchained ecosystem (from consumer to business manager overseeing international distribution of their product from the commercial end) would face unprecedented volatility that does not exist by using regulated currencies. Good old dollars and euros for example do not pose this kind of existential risk to businesses themselves.

In the Paragon case directly, for example, owning Paragon crypto means that monthly rent at the incubator would fluctuate in cost based on the unregulated cost of the coin, not a prenegotiated rental agreement in regular currency for space (which is far less volatile). In the current environment, such space just tripled in price.

Beyond that, no consumer in California, for example, would want to have to face the added cost of buying a hyped token (at artificially raised prices) before they can access the newest, coolest strain of bud.

Such systems in other words, are NOT just a fancy form of a digital payment solution (like Paypal). What they do dramatically increases the risk of price volatility in all business operations (also called “cost of goods sold” or COG), andto the end user while also directly exposing all to such risk at every point of production, processing and sales.

Why?Latency issues are also a major issue.

Because the cost of conducting normal, basic business operations would be directly exposed to speculating investors. Even local businesses, in other words, would be completely vulnerable to not just the fluctuations domestically or even internationally caused by doing business in multiple jurisdictions and traditional currency risk, but have direct and unprecedented exposure to a much less regulated and far more volatile price environment globally. And further one that affects literally the entire manufacturing and distribution process.

Problem 2 – Network Congestion

Latency issues are also a major issue. This is a bit more technical and complicated, but is one of the bigger reasons why most blockchain technology and solutions are still incapable of dealing with commercial industry requirements. Much less keep regulated industries in any space, in compliance.

Here is one way to think of the problem. If you have many users on a blockchain network all at once, speed of transaction goes way down and associated costs go way up.

The tokenized asset in other words, has to compete not only with people buying the token as an investment, but those using them to buy goods and services on the commercial side AND the industry processing taking place behind the scenes to fulfil and track product. This has been easy to see with Bitcoin in particular, but is not limited to the same.

Further, prioritization on a network itself (and the costs involved to overcome them, also paid in tokens) then unfairly creates a monopoly environment because of the added costs involved to speed up otherwise normally processed and critical operations. The biggest boys on the block(chain) win. Always. That is antithetical to anti-trust law.

Problem 4 – Undermining Basic Government Regulations On Cost Of Purchase

Here is the biggest conundrum, particularly facing the international cannabis industry now in the process of exporting across international borders. Governments (particularly in Europe) routinely set prices on medicine (in particular), for large contractual purchases and to insure the continued survival of public healthcare (which in Europe and the UK covers most people). See the German cultivation bid for cannabis as a prime example. The government is forcing the industry to submit prices via competitive bid that are expected to come in somewhere between 1-1.5 euro per gram. This in turn will affect not only domestically grown but imported cannabis – and from all points on the globe as the industry opens up.

That process is impossible in an environment where the cost of production itself would be (in a price volatile blockchained delivery system) inherently unpredictable and unstable because the price of production and distribution is itself a speculated upon commodity that can vary, literally, at the speed of a pump and dumped token, sold on any unregulated exchange, anywhere in the world. And as a result, is also illegal.

French flags blowing in the wind in Le Havre

France Considers Fining Cannabis Possession

By Marguerite Arnold
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French flags blowing in the wind in Le Havre

The French have always been known for possessing a certain national savoire faire. In English, that translates to a phrase meaning innate understanding of how to do things with a certain amount of panache, if not bonhomie. International diplomacy was long conducted in French as a result.

However, when it comes to the famed French silver tongue or sophistication on the cannabis issue, and well, not so much. As is widely acknowledged, even by the French, the country is stuck in the Dark Ages when it comes to cannabis. Almost literally. Including having the strictest and harshest penalties for possession anywhere in Europe. Such penalties do not include a stint in the Bastille. But they can involve prison time, and they are ridiculously harsh. Quelle Horreure! Not mention, Vive la Revolution!

Nobody has said (yet) “Let them eat spice cake.” But France is now clearly an outlier in a continent moving towards cannabis reform of (at least) the medical and decriminalized kind.The most recent statistics suggest that 17 million French people have tried cannabis.

And herein lies the French paradox. Despite the highest per capita usage of any European country, French cannabis consumers have not turned into effective advocates on the political front.

Why not?

How High Are The French?

The most recent statistics suggest that 17 million French people have tried cannabis. 1.4 million use it regularly, about half of those on a daily basis. And here is the exciting (read: terrifying part). Users (not dealers) face up to a year in prison on the first offense, plus a fine of 3,750 euros (about $4,000).

Mon Dieu! Who on earth do the French think they are? A southern American state? One that probably actually banned “French” fries during a dull day at the state ‘lege when politically inspired to do so a few years back?

But even that epithet doesn’t cut it anymore in an environment where Florida is getting in on the action, and the first medical dispensary just opened in Texas.

French flags blowing in the wind in Le Havre
Image: Richard Akerman, Flickr

It is also not like the French big wigs also do not know they are out of step. France’s boyish president, now in office for about a year, Emmanuel Macron, promised decriminalization by the end of 2017 (it didn’t happen). Now a new parliamentary report, released, fittingly on Valentine’s Day, recommends swapping out the current draconian punishments for a fixed fine of between 150-200 euros ($250) per offense. The report also specifically concludes that current legislation is not working.

In 2015, there were 64,000 drug related convictions in France. 40,000 were for use, not dealing. While just over 3,000 of those convicted actually served a prison sentence, even the more conservative aspects of French society have had enough.

Like Germany recently, where the head of the country’s largest police union came out last week for decriminalization, the French police do not want to continue a charade that results in more paperwork for them, rather than a real shift in policy with concrete results. And now, neither do its politicians.

don’t expect this current diplomatic impass to hold for long, even if it gains enough traction to get passed into federal law.In an environment where political gridlock is the name of the game, however, it is very clear that cannabis is just one more issue dropped into a toxic mix that also includes topics like “what’s up in the EU.” Not to mention the nascent separatist and populist sentiments of neighbours like Spain and Germany. Countries, ironically, also far ahead of France on the cannabis front.

The hope of French activists on the ground is that cannabis is actually caught on the right side of history now. Even if, finally, it is changing the law to decriminalize the drug and only penalize patients (and others) with a ticket.

That too, is unlikely to succeed, as many such experiments elsewhere have failed before. That said, it is clearly a step in the right direction and an inevitable one at that.

Caught in the Middle

The great irony of this of course, is what is happening as France becomes an unwilling partner in the cross-border cannabis ménage-a-trois now afoot thanks to changing medical cannabis laws elsewhere in the EU. Namely, cannabis may remain off the reform agenda to parliamentarians and out of reach to the average French patient. That said, cross-continental transport of the drug will inevitably create a situation where a significant amount of cannabis products consumed by medical users elsewhere in the EU is trucked and or trained across France while out of reach to the locals.

Portugal and Spain are shaping up to be low-cost producers to the West. On the East, Germany, Switzerland and increasing numbers of Eastern European countries are looking for cheap product. That means there is going to be a great deal of medical grade cannabis crossing the continent by way of French territory. There is already a trickle. It is about to become a flood. What happens to reform in a country clearly caught in the middle?

As a result, don’t expect this current diplomatic impass to hold for long, even if it gains enough traction to get passed into federal law.

French cannabis policy is far from a la mode. Even to its own citizens. And on this issue, for sure, absolutely old fashioned in the most un-French way possible.