Defendant accused of getting consumers high without their permission
Half-Baked Plans
There’s an urban legend that’s been floating around like so much indica haze for three decades or so, maybe more.
It goes like this: A pair of brothers are returning home from college for Thanksgiving break. Before the holiday begins, they coordinate the baking of a “special” batch of chocolate cookies made with marijuana flour. They plan to bring a regular batch along as well; as the holiday evening drags on, they’ll consume the special cookies while the rest of the family munches on the “normal” treats. Holiday tedium averted, right?
Not so fast. Grandma (in some versions it’s a cousin, or aunt, or what have you) mistakenly switches the two batches, or mixes them together, and before you know it, the dessert portion of the Thanksgiving meal is heading into comedic territory. Dad is giggling uncontrollably, and Grandpa is loudly complaining about his inordinate thirst. The after-dinner board game descends into paranoid recriminations.
Well, we’ve got a case for you that probably led to similar situations – except in our case, the college kids get sued.
In Case Your Memory Is Affected
Before we get into the details, a quick refresher. Cannabidiol (CBD) and tetrahydrocannabinol (THC) are derived from cannabis plants. THC is the psychoactive element in marijuana; in other words, it’s what gets you high. CBD is not psychoactive. This is why CBD has made its way (fitfully and always with the looming threat of regulation) into somewhat mainstream consumer product lines.
Products containing more than a small percentage of THC, however, are Schedule 1 drugs under the Controlled Substances Act.
Probably best to not sell those, at least outside of certain states and their local licensing schemes – though even then the Feds could Trump the locals. With that out of the way, on to the case.
Last summer, Lifted Made, a manufacturer of CBD products that appear in retail locations in Wisconsin, sent 40 samples of various CBD products – bath bombs, e-liquids and oral tinctures, to name a few – to Accelerated Cannabis Laboratories for appraisal of their THC/CBD content. Accelerated is a testing company that evaluates drinking water, food, flavoring and cosmetics, and does pharmaceutical testing as well as evaluating the THC/CBD content in products.
The Takeaway
Things got sticky when Accelerated allegedly noticed that a third party had posted certificates of analysis for Lifted products that were different from the original certificates. After reviewing the documents, Accelerated concluded that Lifted and the third party had altered two dozen of the tester’s certificates, increasing or decreasing the purported THC/CBD content in the products, often from illegal to legal amounts. Later analysis reportedly revealed that, in addition to the first set of altered certificates, Lifted and the third party had fabricated several certificates altogether.
Accelerated sued, claiming that Lifted and the third party altered the reports to reflect their own packaging information, which tests had not substantiated.
The complaint was filed in the Western District of Wisconsin in early May. Accelerated is suing for an injunction to eliminate the false reports. The company alleges false advertising under the Lanham Act and Wisconsin state law, and civil liability for the unauthorized use of an entity’s identifying information or documents under Wisconsin state law. It is an interesting case from a Lanham perspective. What will also be interesting is if regulators and consumer class action lawyers jump into the fray.