Regulatory Developments, Transportation

DOT Isn’t Testing for CBD … But Use Caution

The Department of Transportation (DOT) does not require employers to test employees in safety-sensitive positions for cannabidiol (CBD) use, the DOT’s Office of Drug and Alcohol Policy and Compliance (ODAPC) announced February 18. However, the Federal Motor Carrier Safety Administration (FMCSA) and other DOT agencies still require employers to test employees for marijuana use.

Drug testing urine strips

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A recent legislative change has allowed the marketing and sale of hemp, hemp oil, and CBD products.

The Agricultural Improvement Act of 2018 (PL 115-334) removed hemp from the definition of marijuana under the Controlled Substances Act. However, CBD products with a concentration of more than 0.3% tetrahydrocannabinol (THC) remain classified as marijuana.

Employees in safety-sensitive transportation should exercise caution when considering the use of CBD products, the ODAPC warned in its notice. CBD products may be mislabeled and contain higher levels of THC than the label states.

There is no federal oversight of CBD product labeling. The Food and Drug Administration (FDA) does not certify the levels of THC in CBD products.
The FDA has approved only one CBD product, the prescription drug Epidiolex, to treat certain forms of epilepsy.

Despite the removal of hemp, defined as cannabis and cannabis derivatives with very low concentrations of THC (no more than 0.3% on a dry weight basis), from the definition of marijuana in the Controlled Substances Act, CBD products still are subject to FDA regulation of food, dietary supplements, and over-the-counter and prescription drugs.

It is illegal to market CBD as a dietary supplement.

The FDA has sent warning letters to several manufacturers of CBD products about false, misleading, and unproven claims on product labels. The FDA also is investigating reports of CBD products contaminated with heavy metals, pesticides, and THC. The agency has even tested the chemical content of cannabinoid compounds in some products and found many do not contain the levels of CBD claimed on their labels.

The DOT five-panel drug test analyzes a urine sample for the presence of controlled substances, including amphetamines and methamphetamines (including MDA, MDEA, and MDMA), cocaine, marijuana, opiates (opium and codeine derivatives), and phencyclidine (PCP). DOT drug testing requirements apply to commercial motor vehicle drivers, as well as armed transit security officers, bus drivers, locomotive engineers, aircraft mechanics, pilots, pipeline controllers, ships’ captains and others operating commercial vessels, and subway operators.

Use of CBD products is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Even if employees claim they only used CBD products, medical review officers (MROs) may not verify drug tests if tests confirm THC at appropriate cutoff levels.

In the event of a positive test, the employer’s designated employer representative (DER) is authorized to remove a driver from duty immediately. A removed driver may not operate a commercial motor vehicle on public roadways and must complete the return-to-duty process with a licensed or certified substance abuse professional (SAP). A removed driver also must complete directly observed return-to-duty drug testing and is subject to at least six follow-up tests in the year following a return to duty. SAPs may even prescribe follow-up testing for a maximum of 5 years.

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