Marijuana gets a new definition, but it’s still prohibited

By: Daren Hansen

Publication: Transportation Regulatory Alert

Date Posted: 10/29/2020

The Drug Enforcement Administration (DEA) has updated its definition of “marijuana” to conform to a 2018 law that removed certain restrictions from hemp and the hemp-derived product known as cannabidiol (CBD).

The change, issued on August 21, 2020, affected the official list of controlled substances that commercial drivers are prohibited from using, as found in 21 CFR Part 1308.

THC cutoff is 0.3%

The list still includes marijuana, which commercial drivers can never use or possess, but hemp-derived substances are excluded. In addition, the definition of tetrahydrocannabinol (THC) — the main psychoactive component of marijuana — now excludes the THC found in hemp as long as its concentration remains below 0.3 percent.

Because Congress legalized the production and transportation of hemp in the 2018 Farm Bill, the DEA’s rule change was more of a formality.

Use caution with CBD

Though CBD oils derived from hemp are legal, commercial drivers must use caution when using them, according to the U.S. DOT.

Under DEA rules, any hemp product with a concentration of more than 0.3 percent THC is still treated as a Schedule I substance. This means it cannot legally be prescribed and cannot be used by any safety-sensitive employees, including commercial drivers.

In a July presentation to an FMCSA advisory committee, Sue Lenhard, a policy advisor with the DOT’s drug and alcohol policy office, cautioned that many CBD oils are untested. She cited a 2017 study that analyzed 84 CBD products and found that 21 were mislabeled in terms of their THC content and 18 had overly high concentrations of THC.

Some states allow higher THC concentrations in CBD products, Lenhard added, and drug test results can vary among drivers who have used the same type and amount of CBD oil.

Positive is positive with CBD

Given the lack of government oversight and testing, drivers should use caution with any product containing CBD, the DOT says. Any truck or bus driver who uses a substance with a high THC content (whether marked accurately or not) will fail a DOT drug test, whether the THC came from marijuana or an over-the-counter CBD oil.

Avoiding all products containing CBD may be the only way for drivers to ensure that they won’t inadvertently fail their next drug test.

Important CBD lawsuit is pending

A truck driver fired in 2012 after failing a drug test serves as a warning to others considering the use of CBD oils. The driver and his wife invested time researching CBD products that would safely relieve his chronic muscle pain. After being assured that it contained zero THC, the driver began using a CBD oil from a Colorado company. A month later, he failed a random drug test with nearly double the cutoff concentration for THC and was fired. He then sued the CBD company for fraud. The case remains pending in federal court.

More information about CBD is available from the FDA at https://bit.ly/2vImjUr.


Key to remember: The DEA’s rules now conform to the 2018 Farm Bill that legalized hemp and CBD oils. However, drivers still need to use caution with any product containing CBD.

About the author
Daren Hansen - Transportation Safety Editor

Based on his expertise in the Federal Motor Carrier Safety Regulations, Daren is responsible for writing and editing content for safety-related products, publications, and services for the trucking industry,

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