Imagine that a cannabis beverage manufacturer's plant draws water from a public watershed that is contaminated with a synthetic chemical or chemicals that are classified as probable human carcinogens. Unbeknownst to the manufacturer, the advertising and labeling for their beverage products include a marketing campaign focused around the phrases "organic" or "all natural." This scenario is more than a hypothetical. Synthetic compounds known as per- and polyfluoroalkyl substances (PFAS) are found in public water supplies across the United States. There are about 15,000 different chemical compounds that fall under the PFAS umbrella. The International Agency for Research on Cancer (IARC) has classified certain of these chemicals carcinogenic, as well as possibly carcinogenic to humans.
PFAS are commonly known as 'forever chemicals' because of the time it takes for them to degrade. Not only have PFAS been linked to cancer, but also to immunodeficiencies, reproductive harm, and developmental defects in children.
According to the Centers for Disease Control, exposure to PFAS can occur from eating food packaged in PFAS-containing material, eating food grown or raised near places that used or made PFAS, but, most significantly, from drinking water. Here is a link to PFAS contamination sites in the United State as of November 28, 2023, and it is estimated that drinking water for 26 million U.S. citizens may be contaminated with PFAS.
PFAS litigation is on the rise. The past few years have seen many lawsuits filed by attorneys general and private citizens against PFAS manufacturers stemming from public water supply contamination. Additionally, over the past few years, the Environmental Protection Agency (EPA) has worked to establish uniform permissible PFAS levels as it pertains to public water supplies.
In 2018, the cannabis beverage market was valued at over $900 million, and is projected to grow by 17% until 2033. The emulsification process used to create cannabis infused beverages involves creating water-soluble cannabinoids that are then mixed into water-based solutions, and the final product can appear in the form of a soda, sparkling water, or juice, to name a few.
The EPA, state and local governments, and plaintiffs' attorneys are keeping a close eye on the evolution of PFAS, and additional litigation is almost certain. The scenario presented above may potentially lead to not only personal injury claims, but also presents a classic situation on which consumer fraud class actions are based.
Cannabis beverage manufacturers must be vigilant in complying with not only state regulations pertaining to cannabis manufacturing, but also must be mindful to appropriately handle PFAS contaminated water the company uses to manufacture cannabis beverages.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
