On Monday, the national Department of Transportation held a Motor Carrier Safety Administration advisory committee meeting, during which a presentation focused on cannabidiol, or CBD, and the conundrums that it presents to commercial drivers and their bosses.
The 2018 Farm Bill legalized cannabis with less than .3% THC, catalyzing an already swelling wave of CBD product sales. Only one CBD-based drug, Epidiolex, has been approved by the US Food and Drug Administration. Still, CBD products are for sale everywhere from natural food stores to mall kiosks, and are often products of unknown origin that have not been subject to quality control testing and that contain unknown amounts of CBD. Of particular concern for the country’s commercial drivers and safety-sensitive employees, these unregulated CBD products could also contain more THC than the label indicates, potentially leading to a career altering, or ending, positive drug test. Safety-sensitive employees include pilots, bus drivers, truck drivers, subway operators and those who work with aircrafts, for example.
After the passage of the 2018 Farm Bill, the DOT’s Office of Drug & Alcohol Policy & Compliance “immediately reached out and built new partnerships” with the Drug Enforcement Administration, the FDA, and the United States Department of Agriculture and “engaged in open dialogue, and discussed the future outlook with respect to public health and safety regarding drug testing during the initial transitional period,” DOT policy advisor Sue Lenhard noted during the presentation.
One potential trend that was mentioned several times during the presentation: drivers will test positive for THC, and blame a CBD product that contained more THC than the label indicated. Mislabeling happens often enough: a 2017 JAMA study found that 26% of products tested contained less CBD than the label indicated, and that the “the THC content observed may be sufficient to produce intoxication or impairment, especially among children.” Of the 84 products from 31 companies that were tested, 21 products were mislabeled.
The DOT maintains that “innocent ingestion or false labeling is not a valid medical excuse for a urine drug test” of THC above 15 ng/mL.
“CBD is not a legitimate explanation for laboratory confirmed positive test results,” Lenhard said during her presentation Monday.
The presentation covered the differences between what many know as hemp, versus what many know as marijuana: the plants are similar, except “marijuana” contains higher concentrations of THC. Both plants also contain many other cannabinoids.
Lenhard’s presentation emphasized that while the FDA hasn’t approved any CBD products other than Epidiolex, the Agency also does not “certify the safety or levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate.” In other words, CBD is “buyer beware.”
Despite DOT outreach on these potential issues, Lenhard said the Department receives calls from drivers who have tested positive for THC after taking CBD products that they thought were “safe,” or did not contain THC. She talked about a lawsuit against Dixie Elixirs that was prompted by a truck driver who tested positive for THC after he used a CBD product to help with pain.
“Thinking he had been taking a legal product, he bought the product again, kept it sealed, and sent it to a lab. And sure enough, the lab reported back that there was THC,” Lenhard said, talking about the lawsuit. “We find it extremely frustrating because we get calls day in and out about people using a product that they thought was safe.”
For drivers who test positive for THC after consuming a CBD product, the damage to their careers and income can be long-lasting. For example, a positive THC test sets off a chain reaction: a Medical Review Officer will notify the person’s employer who will then report it to the Federal Motor Carrier Safety Administration Clearinghouse, where it stays on the driver’s record for five years. The driver who tested positive will then have to complete a Substance Abuse Professional (SAP) program, pass a “directly observed return-to-duty drug test,” and comply with follow-up drug tests.
Moving forward, the DOT’s Office of Drug and Alcohol Policy & Compliance is working on several efforts related to CBD and commercial drivers. First, the Office is meeting “frequently” with the US Department of Health and Human Service and the Substance Abuse and Mental Health Services Administration on “numerous drug testing issues.” The DOT is also working to identify any issues that “would be helpful to the safety-sensitive community regarding hemp, marijuana and CBD. The Department is also working on a “Safety Carve-Out to ensure THC will always be tested in DOT safety-sensitive positions.”
The DOT issued a CBD Notice in February after inquiries about whether safety-sensitive employees could use CBD products. (It’s not unusual for the DOT to publish such documents; the Department issued a notice on adult use cannabis in 2012, after fielding inquiries following legalization in Colorado and Washington; the Department also issued a notice on medical cannabis back in 2009, when a rising number of states had passed medical cannabis laws.) The document noted that the DOT tests for “marijuana and not CBD.” The DOT “does not authorize the use of Schedule I drugs, including marijuana, for any reason,” the document noted, adding, “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.”
Moreover, the DOT Notice “urged caution” when drivers are deciding whether to consume a CBD product for, say, a pain or sleep issue.
“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 notice continued.