Te Farm Bill also removed Hemp from the Controlled Substances Act (CSA)11


thus


legalizing the cultivation, distribution, and sale of hemp across the United States. Te Drug Enforcement Agency (DEA) was also mandated to create a classification for medicinal cannabidiol and followed with a Final Order12


that, "places certain


drug products that have been approved by the Food and Drug Administration (FDA) and which contain cannabidiol, in Schedule V of the Controlled Substances Act. Specifically, this order places FDA- approved drugs that contain CBD derived from cannabis and no more than 0.1 percent tetrahydrocannabinol as a Schedule V in the CSA." Around the same time, the Food and Drug Administration approved the first-ever cannabis-derived CBD product, Epidiolex, for medical use by those with specific medical conditions13


. So, the DEA has not rescheduled CBD


across the board. Essentially, the only CBD product considered to have a legal medicinal function, according to the FDA, is Epidiolex. Te federal government still considers all other cannabis-derived CBD products (which do not have FDA approval) to be illegal and their possession or use to be in violation of federal law. Te DEA stated, “Marijuana and CBD derived from marijuana remain against the law, except for the limited circumstances that it has been determined there is a medically approved benefit. In those instances, such as here, the drug will be made appropriately available to the public for medical use.”14


What’s next? Te FDA and the Department of Agriculture are now tasked with creating the framework of rules and regulations for legal hemp production, distribution, and sale. Tis process could take many years. Meanwhile, many states in the U.S. are craſting laws regarding CBD. Here are just a few examples: Alabama’s law says all CBD is illegal, except for Epidiolex. California permits CBD products, but only if they are derived from marijuana—NOT hemp. Iowa allows CBD, but only if it is purchased


www.datia.org


through one of it’s five state-run stores. Te state of Washington permits CBD sales so long as the product contains less than .03% THC15


. Consumers can easily find


hundreds of CBD providers online that ship to “anywhere in the U.S.” Even the big-box drug stores have signed distribution agreements for CBD products. Te FDA is starting to strike back, as of late, sending out hundreds of warning leters16


3 4 5 6 7 to product


manufacturers that sell CBD-infused products or that claim any health or dietary benefits, all of which are currently unproven and in violation of the Federal Food, Drug and Cosmetic Act (FD&C Act)17


.


Takeaways for Employers To recap, CBD use could potentially cause a positive drug test result for THC depending on the actual contents of the product and amounts being consumed. Employees should challenge CBD product claims and contents before choosing to use it, especially if a failed drug test could leave them unemployed. CBD use would not be a justifiable reason for an employee or applicant to argue in response to a positive test result for THC. Employers are cautioned with any adverse action taken when dealing with a state-authorized medical marijuana user (or someone who has been prescribed Epidiolex). Multiple Disability Discrimination cases have been ruled in favor of medical marijuana patients18


, wherein, employers violated


state marijuana laws or failed to take steps to determine if they could reasonably accommodate the underlying medical condition of the individual who was authorized to use marijuana (with likely the same outcome for the medical use of CBD). Employers across the country should take


this opportunity to review and revise their workplace policies. Ensure the language within your policy is clear on the company’s stance for prohibited marijuana use, warns that cannabidiol use could cause a positive drug test, and is up to date with the wave of new laws and court decisions impacting employee drug testing. ❚


8 9 10


References 1 2 https://www.statista.com/statistics/760498/total-us-cbd-sales/


https://www.fda.gov/news-events/public-health-focus/ fda-regulation-cannabis-and-cannabis-derived-products- questions-and-answers#fdaobjectclinical (#17) & https:// www.dea.gov/press-releases/2018/09/27/fda-approved- drug-epidiolex-placed-schedule-v-controlled-substance-act


https://www.leafly.com/sativa/charlottes-web


https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2241751/ https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2241751/ https://jamanetwork.com/journals/jama/fullarticle/2661569


https://www.fda.gov/news-events/press-announcements/ statement-fda-commissioner-scott-gottlieb-md-new-steps- advance-agencys-continued-evaluation


Research conducted by DSCI (www.askbilljudge.com) Research conducted by DSCI (www.askbilljudge.com)


https://www.agriculture.senate.gov/imo/media/doc/ Agriculture%20Improvement%20Act%20of%202018.pdf


11 12 21 U.S.C. §812.


https://www.dea.gov/press-releases/2018/09/27/fda- approved-drug-epidiolex-placed-schedule-v-controlled- substance-act


13


https://www.fda.gov/news-events/press-announcements/ fda-approves-first-drug-comprised-active-ingredient- derived-marijuana-treat-rare-severe-forms


14


https://www.dea.gov/press-releases/2018/09/27/fda- approved-drug-epidiolex-placed-schedule-v-controlled- substance-act


15 16 Research conducted by DSCI (www.askbilljudge.com)


https://www.fda.gov/inspections-compliance-enforcement- and-criminal-investigations/warning-letters/potnetwork- holdings-inc-564030-03282019


17


https://www.fda.gov/news-events/public-health-focus/ fda-regulation-cannabis-and-cannabis-derived-products- questions-and-answers (#14)


18


https://www.drugscreeningci.com/blog/mi-court-rules-in- favor-of-public-employer-in-medical-marijuana-case


Nick has been involved with workplace substance abuse screening programs for more than 12 years. Nick is the Co-Founder & Managing Partner of Drug Screening


Compliance Institute (DSCI) focusing on state, federal and subject-specific compliance train- ing, education, litigation support, research and consulting. Certified as a Designated Employer Representative (DER), Nick is very well networked, a thought leader and a rec- ognized industry subject matter expert. With the right mix of work ethic, drive, and passion, Nick played a lead role building an end-to- end occupational health product & services division from scratch; with a SaaS company that emerged from a startup into a national award-winning industry leader. Nick has con- sulted, designed, implemented and managed drug-free workplace programs for 1000’s of employers across the US and globally.


datia focus 21


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