New Order Prohibits Use of Hemp and CBD By Military

On Independence Day, we thought it would be a good time to address the use of hemp and CBD by active duty military troops. Specifically, we contend that military personnel should have full and unfettered access to lawful hemp and CBD products. Unfortunately, that is not currently the case.

A June 24th, 2020 article on Military.com reported that “US troops can now be punished for using products that contain hemp or cannabidiol [CBD].” This refers to a March 1, 2020 Order prohibiting “…the use by active duty Service members and the members of the Reserve Components of products made or derived from hemp, including CBD, regardless of the product’s THC concentration, claimed or actual, and regardless of whether such products may lawfully be bought, sold, and used under the laws applicable to civilians, and regardless of the route of administration or use.”

This Order is based on a February 26, 2020 memo (DOD Memo) by Matthew Donovan, the Acting Under Secretary of Defense for Personnel and Readiness. In the DOD Memo Donovan directed the Military Departments to issue general orders or regulations by March 1 prohibiting the use of products made from hemp under Article 92 of the Uniform Code of Military Justice. Article 92 makes it punishable for a Service Member to fail to obey an order or regulation. Specifically, the DOD Memo asserts that “violations of the order constitute a general intent offense.”

Donovan’s prohibition is based on a perceived threat to the integrity of the military drug testing program and is worth quoting in full:

“[T]he … introduction of hemp products containing up to 0.3 percent THC in the marketplace create[s] a serious risk to the viability of the military drug testing program for a number of reasons. First, there are now numerous products legally sold in the United States, the normal use of which could cause a positive urinalysis result in routine military drug testing. Second, the U.S. Food and Drug Administration (FDA) does not determine or certify the THC concentration of commercially-available hemp products, such as cannabidiol (also known as CBD), and these products can contain appreciable levels of THC, yet omit any reference to THC on the product label and/or list an inaccurate THC concentration. Consequently, Service members cannot rely on the packaging and labeling of hemp products regarding whether the amount of THC contained in the product could cause a positive urinalysis result. Third, with new or rebranded products being introduced to the marketplace on a near constant basis, it is neither reasonable nor practical for the DoD or the Military Departments to maintain, validate, or distinguish on an individual basis a list of those specific hemp products that may or may not cause a positive urinalysis result. Since it is not possible to differentiate between THC derived from legal hemp products and illicit marijuana, and these products could cause or contribute to a THC positive urinalysis result, I find that the use of hemp products could effectively undermine the Department’s ability to identify illicit THC use.”

The DOD Memo echoes an April 2019 opinion letter from JAG Air Force attorneys (JAG Memo), which recommends that US Airmen not use CBD products outside of the FDA approved drug Epidiolex when prescribed by a physician. In support of this position, the JAG Memo highlights regulatory inconsistency, the fact that CBD products have been known to contain adulterants such as synthetic cannabinoids, and the potential that use of CBD products can trigger a positive urinalysis test for THC. To the last point, the Jag Memo states that “Service members cannot rely on the packaging and labeling of hemp products regarding whether the amount of THC contained in the product could cause a positive urinalysis result.”

Under the new Order, a Service Member is not prohibited from using hemp products “(1) pursuant to legitimate law enforcement activities; (2) by authorized personnel in the performance of medical duties; or (3) without knowledge that the product was made or derived from hemp, including CBD, where that lack of knowledge is reasonable. The order/regulation will not prohibit the use of durable goods containing hemp, such as rope or clothing. The order/regulation will exclude ingestion, consumption, or use of cannabinoid formulations approved as drugs by the FDA for which the Service member has a valid prescription, such as dronabinol (Marinol®, Syndros®) and cannabidiol (Epidiolex®).”

Preserving the integrity of the military’s drug testing program is important and desirable. However, banning an entire class of products under penalty of severe sanctions simply because they contain trace amounts of THC goes too far and is the wrong approach. First of all, THC in hemp has been expressly removed from the Controlled Substances Act. It is not illegal. Moreover, several types of hemp products are not prohibited by the FDA, including topicals and vapes. Other types of products, such as foods containing CBD, are prohibited by FDA policy but widely and safely used. To date, the FDA has taken no action to enforce its prohibition on CBD in food. (Click here to read an in-depth analysis of the FDA’s current position on CBD and the likely path it will take.) Additionally, while it is true that some CBD products contain adulterants, it is wrongheaded to ban an entire class of products based on the actions of some bad actors. There are a number of reputable hemp and CBD companies that produce safe, high-quality hemp products.

Finally, and most importantly, CBD and other hemp-derived cannabinoids have shown great promise in helping with a number of health issues, including PTSD, pain, and anxiety. Do we really want to deny our military Service Members access to otherwise lawful products that could provide significant relief just to preserve the integrity of an outmoded drug testing program? Our answer to that question is a resounding “no”. We recommend that you contact your Congressional representatives and let them know that you want the military to have access to lawful hemp products.

Happy Independence Day.

July 4, 2020

This article was written by Kight Law attorneys Kamran Aryah and Rod Kight. Kight Law advocates for hemp and CBD access across the US and the world. Click here to schedule a consultation.