On February 18, the U.S. Department of Transportation Office of Drug and Alcohol Policy and Compliance issued a notice on the use of CBD products.
The agency stated, “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 include: truck drivers, pilots, school bus drivers, train engineers, transit vehicle operators, aircraft maintenance personnel, fire-armed transit security personnel, ship captains, and pipeline emergency response personnel, among others.
Eric E. Hobbs and Kayla McCann, from the law firm Ogletree, Deakins, Nash, Smoak & Stewart, advised that, “CBD products are not illegal, and nether is their use. CBD products are those products that contain less than 0.3 percent of THC, and therefore do not fall within the legal definition of marijuana under the Controlled Substances Act. Products with less than 0.3 percent of THC should not trigger a positive drug screen, and the DOT does not test for CBD oil.”
However, “CBD use is not an excuse for a positive drug screen,” emphasized the authors. “As the DOT explains, CBD products are highly unregulated and may contain more than 0.3 percent of THC, even if their labels indicate the contrary. This means that the use of CBD products could trigger a positive drug test for THC, and any such test result will be treated as would any other result that is positive for THC.”
The DOT’s notice provided the following for employers and safety-sensitive employees:
- 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.
- 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.
