The U.S. Department of Transportation clarified what is classified as marijuana for testing purposes in a release dated Feb. 18, 2020. Below is the release from DOT.
DOT OFFICE OF DRUG AND ALCOHOL POLICY AND COMPLIANCE NOTICE
The Agricultural Improvement Act of 2018, Pub. L. 115-334, (Farm Bill) removed hemp from the definition of marijuana under the Controlled Substances Act. Under the Farm Bill, hemp-derived products containing a concentration of up to 0.3% tetrahydrocannabinol (THC) are not controlled substances. THC is the primary psychoactive component of marijuana. Any product, including “Cannabidiol” (CBD) products, with a concentration of more than 0.3% THC remains classified as marijuana, a Schedule I drug under the Controlled Substances Act.
We have had inquiries about whether the Department of Transportation-regulated safety-sensitive employees can use CBD products. Safety-sensitive employees who are subject to drug testing specified under 49 CFR part 40 (Part 40) include: 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 personnel, among others.
It is important for all employers and safety-sensitive employees to know:
The Department of Transportation requires testing for marijuana and not CBD.
The labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states. The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no federal oversight to ensure that the labels are accurate. The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.” The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.”* Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label. **[i]
The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. Furthermore, 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.
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.
The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. This policy and compliance notice is not legally binding in its own right and will not be relied upon by the Department as a separate basis for affirmative enforcement action or other administrative penalty. Conformity with this policy and compliance notice is voluntary only and nonconformity will not affect rights and obligations under existing statutes and regulations. Safety-sensitive employees must continue to comply with the underlying regulatory requirements for drug testing, specified at 49 CFR part 40.
A man’s rail career was jeopardized after eating a gummy bear, and SMART Transportation Division cautions members of the risks of a positive drug test after consuming “hemp products,” which are unregulated by the federal government and considered illegal by federal law.
Virginia State Legislative Director Ronnie Hobbs says a 28-year-old member experienced a positive Department of Transportation drug test after eating a candy containing the substance cannabidiol, commonly known as CBD, which is a chemical derived from the marijuana plant.
CBD is legal in products in many states, including Virginia, and reportedly has medicinal properties such as relaxation, pain relief and anxiety reduction in users. Because of these properties and the adoption of medical marijuana laws in multiple states, hemp products containing CBD such as ingestible pills or tablets, candies, “vaping” fluid, topical ointments and oils have become more widely available.
“This is a major issue,” said Hobbs. “These products can cost members their jobs – you don’t know what you’re buying.”
The Federal Railroad Administration (FRA) issued a statement in late April warning of the potential risk of using anything containing CBD, such as gummies or hemp oil.
Since CBD comes from the marijuana plant, federal law considers it an illegal Schedule I controlled substance, even though it may be for sale and legal to use in individual states. Because the federal government considers it illegal, products containing it are unregulated by the Food and Drug Administration (FDA) and there is no oversight of these products.
As a result, users of hemp products run the risk of taking in the intoxicating component of marijuana called delta-9 tetrahydrocannabinol, aka THC. Since there is no regulatory oversight, the label may claim the products have no THC content, but there is no guarantee that is the case, the FRA said.
“CBD products can, therefore, be definitely a ‘buyer beware’ concern in terms of product content and quality control,” the FRA stated. “In addition, CBD products may be innocently or purposefully sold with varying amounts of THC present, which will obviously not be listed as an ingredient.”
So the label might be wrong, saying that the product didn’t contain THC when it actually did, as was the case for the member, Hobbs said.
“It’s creative packaging,” he said. “We need to get a strong message out. Even though the packaging says, ‘no THC,’ there could be THC in there. There’s no oversight.”
Drug tests administered by the DOT target a byproduct called THCCOOH, which appears in a person’s urine after the use of a product containing THC. While a product containing pure CBD would not trigger a positive, a product with a mix of THC along with the CBD taken into the body could trigger a positive test.
“If THC is present in sufficient amounts, that could potentially be the source of a positive federal drug test,” the FRA said.
Even if a regulated employee says the source of a positive marijuana test is a hemp product, FRA says the test still will be verified by the Medical Review Officer (MRO) as a positive result.
That’s what happened to the father of two after just one gummy bear, Hobbs said.