Safety-sensitive employees who are subject to drug testing as 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.

In understanding how CBD products can impact safety sensitive employers and employees the following should be noted:

1. The Department of Transportation requires testing for marijuana and not CBD when a drug test is performed.
2. The labeling of many CBD products may be misleading because the products could contain higher levels of tetrahydrocannabinol (THC) than what the product label indicates. THC is the primary psychoactive component of marijuana. 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." The FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label.
3. 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 (MROs) will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

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% THC are not controlled substances. Any product, including CBD products, with a concentration of more than 0.3% THC remains classified as marijuana, a Schedule I drug under the Controlled Substances Act.

In summary, it remains unacceptable for any safety-sensitive employee subject to DOT regulations to use marijuana. As stated above, because many CBD products are not currently regulated by the FDA, there is no consistency regarding the amount of THC that CBD products contain. As such, the use of CBD products containing THC could lead to a positive drug test result. DOT regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.

As announced by the DOT on February 18, 2020, safety-sensitive employees must continue to comply with the underlying regulatory requirements for drug testing, specified as 49 CFR part 40. The contents of this announcement by the DOT does not have the force and effect of law and are not intended to bind the public in any way. This document is intended only to provide clarification to the traveling public regarding existing requirements under the law or DOT-agency policies.

Source: Department of Transportation

Posted: March 11, 2020