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.
To learn more about how CBD use can affect your security clearance, read our blog “While Marijuana Use Has Been Legalized in Some Places, New Guidance Reminds Security Clearance Applicants That Use Can Still Be Disqualifying.”
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.