WASHINGTON, D.C. – As the hemp industry matures, cannabidiol products such as oils and massage creams continue to gain mainstream success specifically because they often are marketed as being “THC-free.” However, guidance from the U.S. Department of Transportation (DOT) advised even a slight THC presence in completely legal CBD products may have dire consequences for a number of safety-sensitive employees, including commercial truck drivers and transit bus operators.
During a virtual meeting of the Motor Carrier Safety Advisory Committee (MCSAC) on July 13, DOT Office of Drug and Alcohol Policy and Compliance Policy Advisor Sue Lenhard presented “Impact of Hemp’s Legalization on Safety Oversight of CMV Drivers,” recapping the agency’s February 2020 notice regarding CBD usage and drug testing policies for safety-sensitive employees.
In the earlier notice, DOT concluded, “It remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana. Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.”
Lenhard’s MCSAC presentation detailed DOT’s drug testing policy and procedures, the definitions of hemp and marijuana pre- and post-passage of the 2018 Farm Bill—hemp must contain less than 0.3 percent THC, the impact 2014’s farm bill on industrial hemp research, marijuana legality state-by-state, and the unreliability of CBD product labeling.
“We recognize that the removal of hemp and its cannabinoids from the [Controlled Substances Act] definition of marijuana was self-executing, but maintain a policy of innocent ingestion or false labeling is not a valid medical excuse for a urine drug test at THCA confirmatory levels of 15ng/mL,” said Lenhard. “CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.”
“Innocent ingestion” of THC due to mislabeling of CBD products is a major hurdle, according to Lenhard. “The Food and Drug Administration (FDA) does not currently certify the safety or levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate,” she said.
The FDA has however, issued warnings to companies whose products were found to contain different levels of CBD than the product’s label indicated. “Over the past several years, FDA has issued several warning letters to firms that market unapproved new drugs that allegedly contain cannabidiol (CBD),” the agency said. “As part of these actions, FDA has tested the chemical content of cannabinoid compounds in some of the products, and many were found to not contain the levels of CBD they claimed to contain.”
Despite the FDA warnings, Lenhard said her office continues to field calls from drivers who tested positive for THC after consuming CBD products.
DOT’s Drug and Alcohol Clearinghouse maintains test records on file for five years; an employee with a positive test could be mandated to enroll, at their own expense, in a Substance Abuse Professional program and be subject to at least six additional directly-observed follow up tests over a twelve month period.