Bartenders. Sommeliers. Baristas. We’re all comfortable with asking those in the know to recommend flavors, strengths and attributes of the things we consume. But today’s newest category of product expert, budtenders, carries a high risk of liability when those recommendations cross over from a characteristic to a medical claim.
At many dispensaries, first-time visitors who are gobsmacked by the sheer volume of unfamiliar product names, acronyms and terminologies look to budtenders to answer their questions. Unfortunately, many of the questions they have veer on medicinal advice:
What’s the best product for my arthritis pain?
I have trouble sleeping; what do you recommend?
I’m pregnant, so which of these are safe for me to take for morning sickness?
Whether or not the training a budtender receives makes it clear, the law is inviolable: dispensary employees cannot play the role of doctor or pharmacist. They cannot make claims that a product will produce such-and-such effect in this specified dosage. If they do, they are opening the gates wide for a lawsuit.
What’s more, there can be liability as well for what is not said. The primetime TV commercials for the latest costly prescription drugs are proof of that, which half or more of the time devoted to an announcer reading a long list of cautions and contraindications. Failure to either provide verbal warnings or pointing out written warnings can also trigger lawsuits when unforeseen problems occur.
Budtenders can, of course, provide anecdotal information such as: “I’ve used this product and it produced the effect on me that you’re seeking.” or “The manufacturer tells us that this product may provide relief of this symptom to certain people.” The best approach that cannabis businesses can take is to thoroughly train staff in allowable and prohibited language, and of course to carry appropriate liability insurance.
General liability may or may not be enough, as there are often policy exclusions for budtenders who fail to provide, or inadequately provide, what the insurer considers professional services. Even though budtenders do not have professional licenses, insurers and the courts increasingly take the position they are more than mere store clerks. In these cases, a professional liability policy covering budtenders may also be needed – and again, even these may have terms and exclusions.
A simpler part of what may be the best solution is to limit the number of products carried in a retail environment. This gives budtenders and other store personnel a better likelihood of being able to experience each product for themselves and increase their product knowledge.