Supreme Court declines to hear appeal in Organigram pesticide case

| Staff

The Canadian Supreme Court has declined to hear an appeal of a Nova Scotia court ruling dealing with a claim against Organigram for using unauthorized pesticides from several years ago. 

The appeal was seeking to overturn a ruling in a previous appeal heard in the Nova Scotia Court of Appeal that said that public injury claims made against Organigram Inc by patients who consumed their cannabis products cannot be established.

The original case filed in early 2018 came after a class action suit which consisted of a group of people who had been using the medical cannabis producer’s products. The patient and plaintiff argued they had experienced negative health effects after consuming cannabis from the producer which had been found to have been using an unapproved pest control product, myclobutanil. 

The judge in Nova Scotia’s Court of Appeal’s case agreed with Organigram that there was little evidence of, or methodology, to prove the health claims made could be connected to their cannabis products. The patient sought to overturn that ruling in the Canadian Supreme Court, but was not successful. 

The judge agreed and dismissed this aspect of the class action. The associated reimbursement payments that are also part of the class action suit were allowed to remain and will continue to make their way through the courts. 

Organigram in the past has said they will continue to challenge these as they have already provided refunds. 

“Organigram will continue to defend what remains of the Class Action as it has already voluntarily reimbursed many of its customers for this recall via a comprehensive credit and refund program”

Organigram’s unauthorized use of myclobutanil and/or bifenazate triggered public recalls for the cannabis producer in 2016 after testing by a third party lab discovered evidence of unauthorized pesticides. In addition to the product not being allowed for cannabis production in Canada, Organigram was also certified as organic by Ecocert, a third party organic certifier, who also disallowed those products. After initially losing their certification from Ecocert, they received it again in 2018.

Following the recalls, a class action suit was initiated by patients who said they had experienced negative health issues related to using their cannabis which potentially contained trace amounts of bifenazate and/or myclobutanil.

The burden of proving this array of negative health effects was a tough case to make, which helped guide the judge’s most recent decision, stating that the adverse health claims were “too generic”.

The court also noted that the generic testing described by the plaintiff’s doctor did not meet the “workable methodology” requirement of the law.

Among one of the concerns raised by the plaintiff was the fact that when combusted myclobutanil releases hydrogen cyanide, which has numerous negative health concerns. 

The plaintiff had argued that the symptoms she had experienced “coincided” with those associated with exposure to hydrogen cyanide, including lightheadedness and gastrointestinal symptoms. 

In support of its decision, the court noted research that showed that cannabis itself also releases hydrogen cyanide, and in far greater amounts than would be attributed to any myclobutanil on the cannabis the patients in question consumed. The court document shows the judge stating “The amount of hydrogen cyanide produced by myclobutanil is obviously infinitesimal compared to the amount produced by smoking cannabis in the ordinary way.”

The recalls associated with the product noted that the levels of myclobutanil found on the cannabis products were incredibly low, up to 20 parts per million (ppm), potentially because the pesticide was applied at a very early stage in the plant’s growth, not in the flowering stage. 

For reference, one ppm is one part in one million. One ppm is comparable to one second in 11.5 days or four drops of ink in one 55-gallon barrel of water.