The ABC’s of CBD: What Employers Need to Know

With the legalization and decriminalization of hemp in 2018 by the 2018 Farm Bill, we are seeing an explosion of CBD products in markets all across the U.S. You can buy CBD lotions, oils, tinctures, vapes, and even CBD-laced foods. (Although there is a bill in place to ban CBD-laced food and beverages.) CBD (short for cannabidiol) is one of many cannabinoids, or molecules produced by the cannabis plant. Unlike its infamous sibling THC (or tetrahydrocannabinol), CBD does not have psychoactive effects that cause the “high” associated with cannabis. Advertised as wellness products, CBD products claim to naturally cure anxiety, pain, depression, high blood pressure, spasms, acne, and schizophrenia, and even stave off diabetes. (https://www.healthline.com/nutrition/cbd-oil-benefits#section6.) (This article makes no comment on the validity of these health claims.) Given that these products are sold everywhere from CVS to your local supermarket, they are presumably legal, but are all CBD products legal? And can they affect the results of a drug test? It turns out the answer isn’t a simple “yes” or “no.”

Are All CBD Products Legal?

CBD products are legal to the extent they are made from hemp and contain less than 0.3% THC. Hemp and marijuana are the same cannabis plant except that hemp has a THC concentration of less than 0.3%. (21 U.S.C. § 802(16).) Unlike marijuana, which is Schedule I controlled substance regulated by the Drug Enforcement Agency, hemp is not a controlled substance at all. (21 U.S.C. § 812 under Schedule I (c)(17).) Hemp is an agricultural product regulated by federal and state departments of agriculture. Thus hemp-derived products (such as CBD products) are similarly “legal” (that is, they are not illicit drugs). However, both CBD and THC occur naturally in all cannabis plants, and it is impossible to predict the THC levels in a given plant.

This brings us to the main issue with trusting CBD products: lack of enforcement. Researchers tested the accuracy of CBD product labels and found that a significant percentage of tested products contained over the legal amount of THC and most of the labels under- or over-represent the amount of CBD. (One study published in the Journal of American Medical Association found THC in 18 of 84 products with an average concentration of 0.45%. In a different study, researchers at the University of Arkansas found that in 3 of 25 products contained over 0.3% THC and 4 others contained synthetic cannabinoids.) While the U.S. Food and Drug Administration (“FDA”) does some enforcement (see: list of warning letters issued by FDA), its ability to crack down on this burgeoning market is limited. In California, the responsibility of enforcing this 0.3% THC limit in CBD products falls on local authorities.

Trusting what’s on a label always involves risk, but some companies are more transparent than others. For example, some manufacturers provide batch numbers for each of their products that allow you to look up CBD and THC testing results for your specific product.

Will CBD show up on a drug test?

Drug tests, such as those used by employers for screening safety-sensitive employees, look for the presence of THC to determine whether a subject has used marijuana. CBD products can result in a positive drug test if the product is tainted or contains more than the advertised amount of THC. It can also happen even if an employee has only used CBD products with less than 0.3% (or even 0.01%) THC. THC accumulates in the body and is detectable for up to 30 days, so with repeated use, consuming even trace amounts over time may result in a positive drug test. In a study by a team at John Hopkins Medicine, 2 of 6 participants who used CBD products with 0.39% THC tested positive. (https://www.sciencedaily.com/releases/2019/11/191104141650.htm)

Even more troubling, in 2012 researchers found that a common testing method used in urine tests could not differentiate between CBD and THC. This can result in a false positive for marijuana even though an employee has consumed only pure, legal CBD products. (See article by the New York Times: https://www.nytimes.com/2019/10/15/science/cbd-thc-cannabis-cannabidiol.html.) Once a drug test comes back positive, employees (and employers) may have little recourse for challenging this result outside of the courts. Basically, no matter how careful you are, using CBD products comes with a risk for drug-tested employees.

As an employer, what can you do?

-Educate your employees as to the risks of using CBD products.

-Talk to the vendor or laboratory that conducts drug tests and ask whether the specific testing method they use can differentiate between CBD and THC and whether they have procedures in place for identifying false positives caused by CBD.

For more information about what the FDA is doing to regulate CBD products, visit: https://www.fda.gov/news-events/public-health-focus/fda-regulation-cannabis-and-cannabis-derived-products-including-cannabidiol-cbd