Foreseeable: “Being such as may be reasonably anticipated.” – Merriam-Webster Dictionary
Foreseeability: “A reasonable or likely consequence . . .” – Black’s Law Dictionary
After Colorado legalized marijuana, the market was flooded with various forms of recreational drug. Edible cannabis came in the form of gummy bears, brownies, cookies, and candy bars. The unforeseen ramification of this glut of cannabis varieties was the increase in the number of cases where children accidentally ingested marijuana. The number of reported cases of accidental ingestion by children rose by almost 50% since it was legalized, with the majority of cases reported in children between the ages of three and seven. This is not surprising, and can be traced to two reasons.
First, the legalization of marijuana increased the overall number of users. Secondly, unlike most medicines or drugs which do not necessarily seem appealing to a child, the cannabis was being put in forms that children find irresistible.
New Colorado laws regarding the packaging and presentation of marijuana
The majority of cases where children were exposed to marijuana involved edible products. Studies have concluded that these incidents occur for one (or a combination) of three reasons: 1) the children were not properly supervised, 2) the cannabis products were not in child- resistant containers, and/or 3) the marijuana edibles were not stored properly.
In response to these studies, the Colorado legislature has passed several laws regarding marijuana. One such 2015 law is that products containing cannabis must be in child-proof packaging, and that the containers are able to be resealed. This year, the “gummi bear” law has taken effect, which states that marijuana edibles cannot the shape of an animal, human or fruit – shapes that children associate with candy.
Colorado law: are children foreseeable users of marijuana?
Warning labels: marijuana is not intended for use by children
Manufacturers of cannabis products may do their best to comply with the laws regarding the manufacturing of their products. Distributors may place warning labels on their products that read, “Contains marijuana. Keep out of the reach of children.” Sellers of marijuana foods will not market their products to children. Yet children will still eat the marijuana edibles. So who may be liable?
Foreseeability and Irresistibility
The marijuana industry does not want to stop producing cannabis brownies or marijuana cookies, because these edibles are attractive to adults. But they are also attractive to children, and many children will go to great lengths to get to cookies, even when they are properly stored away. The Macmillan dictionary states that “a foreseeable event . . . is one that can easily be imagined or known about before it happens.” It is not hard to imagine a child finding a way to get to an edible cannabis treat and eating the whole thing.
Regardless of how many warnings are placed on the edible marijuana treats, it is foreseeable that children will find a way to eat them. Therefore, the dosing and portion sizes of marijuana products can prove to be very important. A toddler will not stop to read a serving size label. Rather they are going to eat the whole cookie. So if one edible marijuana cookie contains several servings of cannabis, the odds of a child overdosing are very high – no pun intended.
But just because a user is foreseeable, it does not mean that the manufacturer, distributor, or seller is automatically liable. Many factors must be proven in a products liability case. So if you have a potential claim, you may want to schedule a consultation with an experienced Colorado products liability attorney.