The highway transportation industry is no stranger to the longstanding debate on the legalization of marijuana in the U.S. In fact, that debate plays directly into one of the main components of the safety-related regulatory scheme for highway motor carriers, which is drug/alcohol testing for commercial drivers. Commercial drivers, at least those subject to the Federal Motor Carrier Safety Regulations (FMCSRs), have long been prohibited from using marijuana even despite various states' efforts to legalize the substance for medicinal and/or recreational use within their borders. This fact is well-established, but what is less established is the impact of CBD use among commercial drivers.
There's no question the use of CBD products has skyrocketed over the past few years. And although there have not yet been any comprehensive studies on these products to fully understand their effects, many people are turning to them to help relieve pain and other ailments. According to some studies, upwards of 33% of Americans have used some form of CBD.
So what exactly is CBD? Well, as a general matter, CBD is primarily a hemp derivative, which is a close relative to marijuana. In fact, both hemp and marijuana fall into the cannabis genus. Cannabis plants contain two compounds: cannabidiol (CBD) and tetrahedrocannabinol (THC). While both CBD and THC are cannabinoids, only THC has a psychoactive effect on the human body. Thus, as a general proposition, CBD does not produce the same "high" effect as THC. Marijuana and hemp contain both CBD and THC but in different amounts--marijuana containing much more THC, which can lead to impairment and is why the substance remains illegal in most states.
As a general rule, hemp-derived CBD products (i.e., those containing less than 0.3% THC) are legal in every state. And because many contain little to no THC, they are typically safe for use among the general population. However, with very few regulations governing these products, manufacturers are not being held accountable for ensuring their products do, in fact, contain the low levels of THC that they advertise. And therein lies the problem, particularly for commercial drivers!
Commercial drivers are prohibited from using marijuana
As it stands, marijuana remains an illegal Schedule I substance, as classified under the federal Controlled Substances Act. This is despite various states' efforts to legalize the substance for medicinal or recreational use within their borders.
States that have legalized marijuana (source: Rolling Stone)
This tension between federal and state laws on this topic creates a significant amount of ambiguity. This is particularly true given the politicization of the issue. In fact, we have seen directly conflicting enforcement bulletins from the federal Drug Enforcement Agency (DEA) depending on what political party happens to be in office at the time.
With that in mind, the U.S. Department of Transportation (USDOT) has remain steadfast in its assertion that federally-regulated transportation employees (including commercial drivers) remain prohibited from using marijuana while that substance remains illegal at the federal level. In 2017, the USDOT's Office of Drug and Alcohol Policy posted the following notice, which remains in effect to this day:
Recently, some states passed initiatives to permit use of marijuana for so-called “recreational” purposes. We have had several inquiries about whether these state initiatives will have an impact upon the Department of Transportation’s longstanding regulation about the use of marijuana by safety‐sensitive transportation employees – pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire‐armed security personnel, ship captains, and pipeline emergency response personnel, among others. We want to make it perfectly clear that the state initiatives will have no bearing on the Department of Transportation’s regulated drug testing program. The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason. Therefore, Medical Review Officers (MROs) will not verify a drug test as negative based upon learning that the employee used “recreational marijuana” when states have passed “recreational marijuana” initiatives. We also firmly reiterate that an MRO will not verify a drug test negative based upon information that a physician recommended that the employee use “medical marijuana” when states have passed “medical marijuana” initiatives.
So, despite state legalization of marijuana, the substance remains illegal for use among those subject to the federal drug/alcohol testing regulations (e.g., CDL drivers). CDL drivers who test positive for marijuana will, therefore, be prohibited from performing a safety-sensitive function, including driving, unless and until they complete the return-to-duty process.
But what about non-CDL drivers (i.e., those operating smaller vehicles in interstate commerce)? What many fail to realize is that even those drivers who aren't subject to drug/alcohol testing rules are still prohibited from using marijuana by virtue of the physical qualification requirements in Part 391 of the FMCSRs. Indeed, 49 CFR 391.41(b)(12) provides that a commercial driver is only qualified to operate a commercial vehicle if he/she does not use any Schedule I drug, which, again, includes marijuana. Thus, any non-CDL drivers who use marijuana are technically not medically-qualified to operate a commercial motor vehicle.
Okay, so how does this relate to CBD use?
CBD products are not adequately regulated and can lead to positive drug tests
As we said at the start, both hemp and marijuana contain CBD and THC, albeit in different concentrations. Thus, it is possible for an individual to test positive for marijuana (i.e., THC) on a drug test after using a CBD product if the THC concentration is high enough to exceed the applicable cutoffs (50 ng/mL for initial cutoff and 15 ng/mL for confirmatory).
Often, CBD manufacturers go to great lengths to advertise their products as containing no or very little THC to assuage the concerns of its users. The problem is that, unlike for marijuana, there is virtually no regulation on the manufacturing and sale of CBD products, meaning manufacturers are not being held accountable for the representations they make concerning their product. In other words, there are no real regulatory consequences for manufacturers who falsely claim their products contain little to no THC.
The USDOT's Office of Drug and Alcohol Policy puts it this way:
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.
Over the past couple of years, we have seen many cases where commercial drivers test positive for marijuana after using a CBD product that was labeled as having little to no THC. For example, an Illinois-based truck driver recently filed a class-action lawsuit against the manufacturer of CBD edibles after he tested positive for marijuana after consuming those edibles. The label for those edibles indicated the product contained "no THC." The driver, who had worked for 10 years without a positive drug test, subsequently tested positive and was, therefore, prohibited from operating a commercial motor vehicle.
The consequences of a positive drug test are severe. And until the FDA or other agencies tighten their regulations on CBD products, the risk of testing positive for marijuana after using CBD products is real. Accordingly, commercial drivers and motor carriers need to tread lightly in this area for the time being. Many carriers have implemented policies prohibiting their drivers from using CBD products because of this concern.