Despite prevalence, CBD still illegal for DOD members
Military members should not confuse the prevalence of CBD products with their legality. Soldiers are prohibited from using hemp products of any sort, whether or not they have been legalized in certain jurisdictions. (Photo Credit: U.S. Army) VIEW ORIGINAL
FORT LEE, Va. – “Regardless of its widespread availability, it’s a federally prohibited substance and, therefore, illegal within the DOD workforce,” stated Katina Oates, the Army Substance Abuse Program manager here.
Her remark is in reference to products containing cannabidiol extract, or CBD, which have exploded in popularity as a result of aggressive civilian advertising that touts their benefits as pain relievers, stress reducers, depression inhibitors and more.
“CBD is everywhere,” a recently released Army News article pointed out. “You would be hard-pressed to enter any pharmacy, mega-mart or health food store and not find it on the shelves. CBD can even be purchased online from the comfort of your couch.”
Hemp oil and cannabidiol are one in the same. The array of delivery methods include, but are not limited to, gummy chews, cigarettes and vape pens, oils and skin creams, and sleep medications. CBD is frequently used in personal care treatments at nail salons and by some massage therapists.
“Military members should not confuse the prevalence of such products with their legality,” Oates said. “Soldiers are prohibited from using hemp products of any sort, whether or not they have been legalized in certain jurisdictions.”
Due to CBD being both unregulated and often containing small amounts of THC, the DOD still considers it to be an “illicit drug,” and its use as unauthorized by service members and government civilians, the Army News article warned.
An excerpt from Army Regulation 600-85, dated July 23, 2020, reads as follows: “The use of products made or derived from hemp (as defined in 7 USC. 1639o) … regardless of the product’s THC concentration, claimed or actual, and regardless of whether such product may lawfully be bought, sold and used under the law applicable to civilians, is prohibited.”
The other uniformed services have similar regulations prohibiting CBD’s use. There are federal workforce restrictions that apply to government civilians as well – further details are available on the Substance Abuse and Mental Health Services Administration website, samhsa.gov.
According to CBD-product manufacturers, the key hemp-plant-based ingredient is “non-psychoactive,” which means the consumer won’t experience the “high” of typical THC found in cannabis. The disparity in that claim, from the DOD’s perspective, is found in the federal guidelines that say a product is federally legal if it contains less than 0.3 percent Tetrahydrocannabinol, meaning the THC is still present.
The market also has been largely unregulated, so nobody can say whether ingredient labels are true to actual cannabis levels. In a recent study of 84 CBD products, 69 percent had higher levels of cannabiol than specified.
Furthermore, with no Federal Drug Administration oversight of the production of CBD products, “there is an increased risk of potential injury related to ingesting potential molds, pesticides and heavy metals,” the Army News article advised.
As for the number of aches and ailments the oil is said to decrease, there is little scientific evidence to support it, according to the popular health information website webmd.com. However, research into hemp-derived medication continues to increase following the FDA’s approval of the CBD drug Epidiolex for the treatment of two rare forms of epilepsy, Dravet Syndrome and Lennox-Gastaut Syndrome.
“Summing up this discussion, I think it’s all about informing our military community about these products and asking them to be mindful of their potential impact on someone’s career,” Oates said.
“Given the DOD and Army’s stance on this subject,” she continued, “there is no room for interpretation if it causes someone to test positive during a random drug test. Think of it as a health issue as well. Part of my office’s responsibility is to inform the community about the risk of using a chemical substance that could be harmful because it lacks oversight and full FDA approval.”
CBD and Security Clearances: What do I need to know?
CBD products are a growing trend in the United States and can be made from either hemp or marijuana. In many states, CBD products are readily available over the counter. Oversight of production, however, has not kept up and product labels are not always accurate. This puts employees at significant risk for an unexpected positive drug test and the loss or denial of a clearance. For federal employees, federal contractors, and military members—especially those holding security clearances—the consequences can be devastating.
Q: What is CBD?
A: CBD, formally known as Cannabidiol, is a natural compound found in cannabis plants. Both hemp and marijuana are classified biologically as cannabis; however, hemp does not produce enough THC (tetrahydrocannabinol – the psychoactive intoxicating compound that results in a “high”) to be intoxicating. In the U.S., industrial hemp is defined as a Cannabis sativa L. plant containing 0.3% or less THC.
Q: Is CBD legal in the United States?
A: CBD products made from hemp are legal under federal law pursuant to the Agricultural Improvement Act of 2018.
CBD products made from marijuana are illegal under federal law because marijuana is a controlled substance under the Controlled Substances Act.
State laws vary for both hemp and marijuana products.
The Department of Defense takes the position that all CBD products are “completely forbidden for use by any service member in any of the services at this point of time.” Various military components have issued separate but consistent policies regarding the use of CBD products. For example, Army Regulation 600-85, The Army Substance Abuse Program, prohibits soldiers from using hemp or products containing hemp oil and are also prohibited from using synthetic cannabis, to include synthetic blends using CBD oil, and other THC substitutes (“spice”), or any other substance similarly designed to mimic the effects of a controlled substance. Likewise, the Navy recently reiterated that “all products derived from hemp or marijuana are still prohibited.”
Q: If I use CBD, will I test positive for marijuana?
A: It is possible. According to the Substance Abuse and Mental Health Services Administration (SAMHSA), one study showed that nearly 70% of the 84 CBD products tested contained unlabeled ingredients, including THC. This should be an alarm bell for any employee subject to drug testing. Because of the lack of regulation, even hemp-based CBD products could result in a positive drug test.
Q: Can using CBD affect my security clearance?
A:Yes. Unfortunately, as far as the federal government is concerned, a positive drug test is a positive drug test and using drugs while holding a clearance will usually result in the clearance being pulled or denied. At least for now. In a June 2019 memorandum addressing some of the confusion regarding CBD and federal employment, SAMHSA makes it clear: “. . . there is no legitimate medical explanation for a marijuana positive test result other than a verified prescription for [specific FDA-approved drugs] or generic equivalent.” The U.S. Food and Drug Administration (FDA) warns that it has approved only one “cannabis-derived” and three “cannabis-related” drug products, all of which require a medical prescription.
To be sure, marijuana is still illegal under federal law and a positive drug test could have serious consequences for federal employees with or without a security clearance— even in states where recreational marijuana is legal under state law.
On December 21, 2021, particularly in response to the changing landscape of marijuana use under state law, Director of National Intelligence Avril Haines issued a memorandum clarifying the guidance provided to adjudicative agencies regarding an individual’s involvement with marijuana. This guidance addresses:
- Recency of recreational marijuana use;
- Use of cannabidiol (“CBD”) products, such as CBD oils; and
- Investment in marijuana-related businesses.
Q: As an employee with security clearance, what should I do if I am considering using an over-the-counter CBD product?
A: Consult with your physician and consider the risk. Losing a security clearance is not just losing one job—it could result in the loss of a career.
KCNF has a team of attorneys with extensive experience handling all aspects of security clearance law. If you have a security clearance or intend to apply for one and have questions, we can help.
Want to know more about security clearances and your rights and obligations? We literally wrote the book on it.
For more information, please check out Security Clearance Law and Procedure by KCNF partners Elaine Fitch & Mary Kuntz.
Warning to Federal Employees and Those With Security Clearance: CBD Use Puts Jobs in Jeopardy
CBD has exploded on the market, with people using it for relaxation, pain relief — even better sleep. But though it is legal to use, the News4 I-Team found it could still cost you your job.
“I didn’t worry about it a bit — never gave it a second thought,” said one former federal law enforcement officer who purchased CBD oil over the counter to treat severe back pain.
He said the store clerk told him the product contained no THC and was perfectly safe. He placed the liquid CBD under his tongue as instructed. Three days later, he was randomly selected for a drug test at work.
“And then boom, I was told that I had tested positive for THC,” he said. “It’s horrible. It’s a horrible feeling.”
THC is the psychoactive compound in marijuana, which is prohibited for use by all federal employees. CBD also comes from the cannabis plant but is a different cannabinoid that does not make users high. Federal law allows hemp-derived CBD to contain trace amounts of THC.
“I’m like, ‘It wasn’t marijuana, guys.’ But I’m caught between a rock and hard place,” he said. “They can’t prove that I smoked marijuana, and I can’t prove that I didn’t.”
He asked the I-Team to conceal his identity, fearing that speaking publicly could jeopardize his retirement benefits. He chose to retire earlier this year after his boss revoked his security clearance and suspended him indefinitely.
“It just makes you feel like you’re a bad person, you wasted your career,” said the agent, who had worked in law enforcement for nearly three decades.
“It is an eye opener for a lot of people,” said Don Mihalek, executive director of the Federal Law Enforcement Officers Association.
Dozens of his members around the country have found themselves in similar situations, Mihalek said.
“It’s a new thing that’s out there, and I don’t think a lot of agencies have really gotten to the point of addressing how they’re going to handle that,” Mihalek said.
Neither has the drug testing industry, said Dr. Michael Kosnett, a medical toxicologist at the University of Colorado.
“The issue right now is the panel of testing,” he said. “Even with the sophisticated confirmatory testing, it doesn’t look for the metabolite of CBD. It only looks for the metabolite of THC.”
The testing industry likely will evolve over time to better deal with the rise in use of CBD, Kosnett said. Employers have no way to tell whether the THC in someone’s body originated from CBD or marijuana.
“It may not at all be enough to cause the person to feel high or intoxicated but it’s enough to have the metabolite of THC appear in their urine,” Kosnett said.
Plus, the CBD industry is largely unregulated, so users have no way to know what’s really in the products they’re buying. One study found nearly 70 percent were inconsistent with their labeling, including some with hidden THC, which can accumulate in your body over time.
“Unless a person really knows and has confidence in the purity of that particular brand they have, they could have an unfortunate surprise on a urine drug test,” Kosnett said.
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This summer, the federal division that oversees drug testing for federal employees sent a memo directing agencies “to inform applicants and employees of the risk that using such products may result in a positive marijuana test.” The memo reminded employers “there is no legitimate medical explanation for a marijuana-positive test result other than a verified prescription” for a few FDA-approved drugs.
The Department of Defense has specifically prohibited CBD use — even though Congress passed a law approving it for everyone else.
“It’s not fair. It’s completely unfair,” said Nina French, managing partner of Current Consulting Group, a firm that specializes in all areas of substance abuse testing.
Public and private employers are frustrated and unsure of how to adapt, French said.
“The problem is the times have changed before the tests have. And so now everybody’s going to be caught in the middle until technology and law catches up,” French said.
Employers use drug tests to limit liability and lower insurance costs for workplace accidents, French said. There are roughly 40 million lab-based drug tests in the U.S. each year.
“I can honestly not think of anything in our history that we have managed to botch to this degree,” French said.
The federal agent said he has never used illegal drugs but has no way to prove that. He could have spent years and drained his savings fighting to save his job but decided to retire instead.
“If it were me and this was a person who came into my office, I would look into challenging it,” said Suzanne Summerlin, general counsel for the National Federation of Federal Employees.
Summerlin thinks CBD users could argue there was no intent to break the rules. She worries the federal policy could keep agencies from hiring good candidates or cause them to lose good employees who were just misinformed.
“Certainly, moving forward, we are going to be letting folks know that these situations are happening,” Summerlin told the I-Team.
Both unions say if your job is one that drug tests randomly — after an accident, for security clearance or any other reason — it’s best to avoid CBD products all together.
“Our advice is if you’re going to do anything medicinal, make sure you get a doctor’s prescription,” Mihalek said.
The federal law enforcement officer told the I-Team he contacted his agency’s director in Washington but was told there was nothing he could do.
“If I had known I was going to test positive for this stuff, I would’ve never taken it,” he said. “I mean, look what I’ve had to go through.”
Reported by Jodie Fleischer, produced by Katie Leslie, and shot and edited by Steve Jones.