US DOT Muddies the Water On CBD Policy

Employees who are subject to drug testing should be cautious when using CBD products.

The United States Department of Transportation Office of Alcohol Policy and Compliance (DOT) released a “CBD Notice” yesterday (Notice). Although it purports to clarify the law with respect to a certain category of “safety-sensitive” employees, it really just muddies the water. Fortunately, and as the DOT clearly states, the Notice does not have the effect of law.

A copy of the Notice is below. It spends two pages stating the obvious: marijuana is illegal and “it remains unacceptable for any safety-sensitive employee subject to the DOT’s drug testing regulations to use marijuana.” It goes on to state that CBD use is not a legitimate medical explanation for a positive test result for marijuana. Moreover, a drug test confirmed at the “appropriate cutoffs” (meaning levels of tetrahydrocannabinol (THC) metabolites above which are considered prima facie evidence of illegal drug use) will be deemed to be confirmation of illegal drug use.

This Notice is directed to the following categories of employees, as defined under 49 CFR part 40 (Part 40): pilots, school bus drivers, truck drivers, train engineers, transit vehicle operators, aircraft maintenance personnel, fire-armed transit security personnel, ship captains, and pipeline emergency response and personnel.

The Notice appears to address the very real issue of testing positive for marijuana from use of lawful, hemp-derived products. (Click here to read about cannabis employment testing.) Under DOT Rules, the confirmation cutoff for marijuana metabolites, including THC, is 15 nanograms per milliliter. While it is unlikely that a person who consumes a typical amount of hemp extract/ CBD would test positive for marijuana under this cutoff, it is far from impossible. In fact, supposedly “THC Free” CBD products can contain sufficient quantities of THC to register in urine. Virtually no marijuana product, including CBD isolate, is totally free of all THC.

There is a legitimate discussion to be had about the use of hemp/CBD products in the contest of employees subject to drug testing. There is also a legitimate discussion to be had about whether it is possible to correlate impairment for operating vehicles and machinery with levels of THC metabolites in the blood. Unfortunately, the DOT missed each of these opportunities with the Notice. Instead, it managed to reiterate the well-known fact that safety-sensitive employees are prohibited from using marijuana while simultaneously creating confusion about CBD.

Here is the Notice:

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February 19, 2020

Rod Kight is an international cannabis and hemp attorney. He speaks at cannabis conferences across the country, drafts and presents cannabis legislation to foreign governments, is regularly quoted on cannabis matters in the media, and maintains the Kight on Cannabis legal blog, where he discusses legal issues affecting the cannabis industry. You can contact him here.

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