Can the Producers of “Legal Highs” be Sued Successfully?

Michael GrossmanOctober 20, 2015 5 minutes

The manufacturers of a class of custom-made drugs known as "legal highs" have seemingly found a way to sell incredibly dangerous products, deny the product's known usage, and then hide behind their disclaimer to avoid any legal accountability. We've got a problem with that. And, as we'll discuss, we think there may be a way to sue them despite their legal maneuverings.

Questions answered on this page:

  • What are legal highs?
  • How do legal high manufacturers avoid civil product liability claims?
  • How can consumers who have been injured by legal highs pursue successful legal action against the producers of these dangerous products?

Forget about drugs for a second. Imagine instead that Ford Motor Company built a new F-150 and it was soon discovered that these trucks were prone to spontaneously exploding. Desperate for a workaround and reluctant to stop selling the world's most widely sold pick-up truck, imagine that a Ford exec has an epiphany and exclaims in a board meeting, "I've got it! We can't sell these exploding death machines as trucks, right? So what if instead we sell our trucks as 'lawn ornaments' and we put a big warning sticker on the driver's door that says, 'Not fit for road use. Do not drive.' What people choose to do with them once they leave our dealerships is none of our business."

Imagine that this half-hearted disclaimer created a legal loophole that allowed Ford to sell their dangerous trucks to customers; the idea being that since they told customers not to drive their new "lawn ornament," Ford simply isn't responsible if someone does drive it and then gets injured or killed when it explodes. Do you think that the public would stand for this, a blatant and willful misrepresentation of the purpose of Ford's "lawn ornaments?" Not a chance in hell.

Why then do we let the manufacturers of synthetic marijuana, pseudo-methamphetamine, and off-brand LSD apply that same "logic?"

How They're Getting Away With It

"Not fit for human consumption." "For research purposes only." These are just a couple of the disclaimers you will find on so-called legal highs. For those not familiar with the products, they are chemicals engineered to give the user a high that is similar to that of drugs such as marijuana, cocaine, or crystal methamphetamine. Unlike their clearly illegal cousins, legal highs are chemically different in subtle ways, while still delivering an intoxicating effect.

The packaging wrapped around these products are littered with warning meant to get around laws that make it illegal to sell intoxicants, as well as to circumvent the Food and Drug Administration (FDA), which can regulate chemicals meant for human consumption. Since in one way or another, they are all labelled not fit for human consumption, product liability cases against companies that produce legal highs are quite difficult to pursue. The idea at work here is that the manufacturers of these products clearly tell users not to use the products, so when said manufacturers are sued, they can defend themselves by saying, "Well, we told the customer not to consume it, so it's not our fault that anything bad happened."

These chemicals are usually marketed as incense, bath salts, or even in some cases, plant food. Since the user who ingests them is not using the product the way the manufacturer intended (according to the labels, wink, wink), product liability is difficult to prove. You see, products liability injury cases are actionable on the basis that the manufacturer sold a product, a consumer used it as intended, yet they were hurt because the manufacturer failed to warn them about a side effect or unintended consequence that was likely to occur. But since proclaiming the customer's innocence and stating that they used the product as intended is sort of the bedrock upon which a product liability claim is built, you can see how challenging it is for such a theory to be readily applied to injuries stemming from products that are consumed in a manner inconsistent with how the packaging tells you to use said product.

In some ways legal highs combine the worst of legal and illegal drugs. They are readily available like any over the counter medicine, but there is no way to know exactly what is in them or in what quantities, just like an illegal drug. These combinations as well as interactions with alcohol and illegal drugs makes legal highs particularly dangerous. Thousands of people a year are injured by them and require treatment in emergency rooms across the country. The death toll for these substances is conservatively estimated to be in the hundreds. Make no mistake about it, consuming these products can cause horrific reactions, including vivid hallucinations, which have turned some users in temporary psychotics, for a lack of a better explanation, who have violently lashed out at family members and friends.

Watch this video to see the type of impact that synthetic marijuana can have on an individual. Fair warning, it's graphic and chalk full of bad decisions.

Clearly, a substance that can cause such a violent reaction should, at a minimum, be subject to some degree of scrutiny. Yet the manufacturers of these products have largely skirted the law simply be claiming that these drugs' only use is actually not their intended use.

The legal gray area in which legal highs operate is frustrating. Don't get us wrong, our firm really has no opinion one way or another on what substances people choose to ingest so long as it's produced, sold, and consumed responsibly. No, our concern is that the manufacturers of legal highs attempt to make money in way that is clearly injurious to their clients, while at the same time denying responsibility under the phoniest of pretenses. The quasi-legality of legal high companies partly explains why credit card processors like Visa and Mastercard refuse to do business with them. It also means that very few law firms will take on product liability claims from customers who have been injured by legal highs. Further, since governments can only outlaw specific chemical compounds, legal high companies are always developing new products and formulas to stay a step ahead of the law. They have proved adept at making new legal highs faster than legislatures can make them illegal.

Maybe There's a Way To Hold Them Accountable After All

At Grossman Law Offices, we have a different spin on civil action against those companies who produce legal highs. While product liability claims may be exceptionally difficult to press, it seems really unlikely that the private conversations of legal high producers match their public rhetoric. Think about it for a second. Sure, in public, they claim that everyone misunderstands the true intentions behind their products, but do you really think for a second that they never speak candidly among themselves? Or in emails? The simple nature of the legal high business makes this proposition almost certain.

If "not fit for human ingestion" is merely a marketing pretense, distinct from conversations within the company, then exposing that fact would show that these companies are engaged in a conspiracy, and Texas law allows you to sue businesses who engage in conspiracy. A lawyer can get around the thorniness of a product liability claim and should have sufficient grounds to proceed to discovery. Emails, telephone calls, employee text messages, these are all open to the discovery process in a lawsuit. Like most mobsters, Tony Soprano included, were never brought down by being directly tied to their crimes, instead they were proven to be part of a criminal conspiracy, companies that manufacture legal highs may be susceptible to similar legal tactics, only instead of using the criminal courts to put them out of business, it would be civil litigation.

While we admit that this theory of liability is novel and to our knowledge has not been attempted in court before; We also firmly believe that it is the best way to proceed in civil litigation against the manufacturers of legal highs. The damage they do to society is undeniable. Between emergency room visits, deaths, and other damage, their products are both irresponsibly manufactured and deceptively marketed.

Unlike a lot of law firms that look always look for the path of least resistance and bail when the going gets tough, we are constantly looking for ways to do what is right by those who have been injured by unscrupulous manufacturers.