Many employers, for a number of good reasons, drug test their employees. Jobs that require strict attention, such as truck drivers and those operating heavy machinery would be ill-suited to those under the influence of drugs or alcohol. Those in the medical field, people working with young children, police officers, fi DOT OFFICE OF DRUG AND ALCOHOL POLICY AND COMPLIANCE NOTICE There is a lot of confusion around marijuana laws in Ohio. After the 2018 Farm Bill, Residents of Ohio, like other states, are unsure what is legal and what is not. Our Lawyers have worked on marijuana cases in Ohio for many years are happy to help if you call.
Will CBD Cause Me to Test Positive on a Drug Test?
Many employers, for a number of good reasons, drug test their employees. Jobs that require strict attention, such as truck drivers and those operating heavy machinery would be ill-suited to those under the influence of drugs or alcohol. Those in the medical field, people working with young children, police officers, firefighters, and airline pilots are just a few of those who should expect to be tested upon hire and through random drug testing.
Most drug tests used for employment run from 5 to 10 panels. They screen for drugs such as barbiturates, cocaine, amphetamines, opiates, and THC. THC, or tetrahydrocannabinol, is one of over 100 cannabinoids identified in cannabis. This molecule is the psychoactive component of the plant. It is what’s responsible for getting users “high.”
Drug tests almost universally screen for the cannabinoid THC. CBD, or cannabidiol, is also a cannabinoid identified in hemp and marijuana. However, it has different properties from THC. It is not regarded as psychoactive, nor is it thought to cause impairment. Drug tests generally do not test for this molecule.
Nonetheless, because CBD is produced from cannabis (and yes, hemp is part of the cannabis family), taking anything made from full-spectrum hemp extract could theoretically trigger a positive THC test. Legally, hemp is defined as any cannabis plant with less than 0.3% delta-9 THC. Ingesting anything with less than 0.3% THC will emphatically not get you “high;” however, the trace amount metabolized by your body could show up in drug tests. Many employment drug tests are designed to detect very small amounts of the substance. In addition, the molecule is fat-soluble, and as a result, can remain in your system for days to weeks.
Whether trace amounts of THC show up on a drug test depend on a number of factors. Body composition, activity level, frequency of use, and concentration of dose all affect THC levels. For example, someone who is inactive with high levels of body fat are more likely to hold onto the trace amounts of CBD as those who are lean and work out daily. Genetics and metabolism also likely contribute to differences.
Full-spectrum products are preferred by many users because not only do they contain CBD, they contain small amounts of other cannabinoids, many of which are thought to have beneficial and synergistic properties.
If you are drug tested and have only been using CBD products, speaking to your employer may be your only option. Your employer will have the final word on whether they accept your explanation, but saving evidence of your use of CBD may help. Unfortunately, there is no way to differentiate the THC from a CBD product from that of a legal hemp product.
However, the good news for those who are drug tested is that CBD can be isolated from other cannabinoids. Our CBD Isolate is one such product. CBD isolate is still beneficial, and many have found that it works for their issues. The CBD isolate has undetectable levels of THC and on its own will not produce a positive THC drug test.
Worth noting, though is that CBD is not regulated. The tinctures found in health food stores, gas stations, and retail boutiques has not gone through a standardized testing protocol. In fact, the labeling accuracy of most products is highly suspect. The majority in the study were found to not contain levels of CBD on the bottle. Some contained more than the legal amount of THC. And a few even contained synthetic cannabinoids.
When selecting a CBD product, it is essential to go with an ethical company where strict testing and good quality control are standards. We guarantee the potency and purity of our products.
In This Section
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DOT “CBD” Notice
DOT OFFICE OF DRUG AND ALCOHOL POLICY AND COMPLIANCE NOTICE
The Agricultural Improvement Act of 2018, Pub. L. 115-334, (Farm Bill) removed hemp from the definition of marijuana under the Controlled Substances Act. Under the Farm Bill, hemp-derived products containing a concentration of up to 0.3% tetrahydrocannabinol (THC) are not controlled substances. THC is the primary psychoactive component of marijuana. Any product, including “Cannabidiol” (CBD) products, with a concentration of more than 0.3% THC remains classified as marijuana, a Schedule I drug under the Controlled Substances Act.
We have had inquiries about whether the Department of Transportation-regulated safety-sensitive employees can use CBD products. Safety-sensitive employees who are subject to drug testing specified under 49 CFR part 40 (Part 40) include: pilots, school bus drivers, truck drivers, train engineers, transit vehicle operators, aircraft maintenance personnel, fire-armed transit security personnel, ship captains, and pipeline emergency response personnel, among others.
It is important for all employers and safety-sensitive employees to know:
- The Department of Transportation requires testing for marijuana and not CBD.
- The labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states. The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate. The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.” The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.”* Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label. **[i]
- The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.
It remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana. Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.
The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. This policy and compliance notice is not legally binding in its own right and will not be relied upon by the Department as a separate basis for affirmative enforcement action or other administrative penalty. Conformity with this policy and compliance notice is voluntary only and nonconformity will not affect rights and obligations under existing statutes and regulations. Safety-sensitive employees must continue to comply with the underlying regulatory requirements for drug testing, specified at 49 CFR part 40.
The Complex Question of Legal Hemp Products in Ohio
Disclaimer: This article contains general analysis of Ohio and federal laws. It should NOT be read as legal advice. If you need legal advice specific to your case or situation, then please call Dearie, Fischer & Mathews or seek the advice of some other attorney.
We have written about the topic of marijuana laws in several previous articles. There is, however, much more to say on the topic. There are some differences between federal marijuana laws and the things some of the states allow, including Ohio. We have mentioned some of these discrepancies in previous articles such as “Facts Surrounding Recent Discussion on Federal Marijuana Law.” Another complication with some of the marijuana laws are the chemicals that come from marijuana, which ones are legal, and why some of them are legal while others are not.
Many Ohioans are already using marijuana legally for medicinal purposes. And while Ohio, like most other States, has a lot of citizens in favor of “decriminalizing” recreational marijuana, there are still quite a number of marijuana uses which are not legal in Ohio. And the federal laws regarding marijuana do not even allow some of the medical marijuana that is legal in Ohio, which can make things a little bit confusing when it starts to become allowed on the state level. In recent years, however, the federal laws themselves have become even more confusing. There are still many widely used forms of marijuana which are illegal to sell, possess, or consume. However, as more and more states make marijuana legal on a state level, the definition of legal hemp product is becoming unclear on a federal level. When making the assessment of whether or not to use hemp products or how much to use, it is good to know the law surrounding the concept. Here we will discuss the current laws on hemp products and how the laws could be changing.
Where Laws on Hemp Get Complex
For decades, it has been on the forefront of the minds of Americans that marijuana is federally illegal. To be more specific, marijuana products which contain an illegal chemical called Tetrahydrocannabinol (THC) are illegal products. At least, that was the rule up until the 2018 Farm Bill. The Farm Bill was very specific in stating that a substance could not be considered a legal hemp product if it contained a greater than 0.3% by volume of a type of THC called Delta-9 THC. Because the Farm Bill was so specific, hemp farmers were able to find a way to extract chemicals from hemp with similar properties and effects to Delta-9 THC which did not fall under the Farm Bill’s definition of illegal marijuana. Products which contain Delta-9 THC do often contain greater than 0.3% and are therefore illegal under federal law. And normally marijuana contains an illegal amount of Delta-9 THC. However, with the new extraction processes being done on hemp farms, some marijuana products contain isomers of Delta-9 THC. When we say isomers of Delta-9 THC, we are talking about substances with very similar chemical makeup to Delta-9 THC, but are not quite the same. Usually the isomers are so similar to Delta-9 THC, they are still THC. Two of the most popular isomers THC are Delta-8 THC and Delta-10 THC.
Is Delta-8 Legal?
So are Delta-10 and Delta 8 THC legal for recreational use? Well… they are not prohibited by the language of the Farm Bill. Ohio does have laws with similar language to the Farm Bill. The Ohio Revised Code 928.01(F) contains this definition for “hemp product:”
“Hemp product” means any product, containing a delta-9 tetrahydrocannabinol concentration of not more than three-tenths per cent, that is made with hemp. “Hemp product” includes cosmetics, personal care products, dietary supplements or food intended for animal or human consumption, cloth, cordage, fiber, fuel, paint, paper, particleboard, and any other product containing one or more cannabinoids derived from hemp, including cannabidiol.
Delta-8 products have become widely and readily available, and for the time being they are not being shut down by law enforcement. Given the situation, Delta-8 and Delta-10 users still need to be very cautious. For one thing, Ohio could decide to ban Delta-8 as several other states have already done. There is also the fact that most Delta-8 is often synthetically derived, which would make it a schedule 1 illegal substance even though it does not contain the prohibited amount of Delta-9 THC. Although it would be possible to have a Delta-8 product containing Delta-8 which is not synthetically derived, it is hard to know how the Delta-8 in a given product was involved. For that reason, or some other reason, the federal government could start enforcing a law saying that Delta-8 THC is illegal.
So while many stores and marijuana users in Ohio have been allowed to treat Delta-8 and Delta-10 as if they are legal for practical purposes, we will stop short of telling our readers that these substances are legal. There is confusion not simply because consumers are confused. There is confusion because the law itself is still in need of clarification. On top of that, consumers do seem to be confused. There are many misconceptions floating around among marijuana users. Some think marijuana has been decriminalized while others think that the delta-8 products are something completely different with no legal concerns surrounding them. In reality, there is still a lot of controversy surrounding Delta-8 and Delta-10, and anything with greater than 0.3% Delta-9 THC is certainly against the law.
When it comes to Delta-8 in medical marijuana, Ohio has allowed medicinal products that contain Delta-8, but has recently begun regulating these medicinal products more heavily.
Considerations on Other Hemp Products
You may have noticed the Revised Code specifically mentioned cannabidiol. This is another chemical derived from hemp which has become quite popular and is widely referred to as CBD. While CBD is not THC, some of the products made with CBD can sometimes also contain THC while other ones do not. While CBD by itself is not prohibited by the 2018 Farm Bill, the legality of CBD products depends on a lot of factors, and many of the CBD products being sold are arguably illegal.
Unfortunately, there is no good answer to the questions of how much or what types of THC products you can use while still being responsible. It is up to the individual to know the effects of the products they consume and the impact the effects will have on their lives and careers. Now that you do not have to find yourself a drug dealer to buy THC, it may not feel like you are taking a risk even though you could be.
You may have even seen hemp products being sold at a gas station. Some gas stations sell CBD products such as CBD cigarettes, or relaxation brownies which often do contain hemp. While it is true that relaxation brownies sometimes use melatonin to help you relax, they are still sometimes hemp products. And then there are the Delta-8 products we discussed above that can sometimes be found at gas stations and convenient stores. Some of these products pose a bigger legal risk than others, but consumers should pay attention to what they are buying and who they are buying from. It is not unheard of that stores are shut down and store owners charged because they were selling illegal products or did not have the proper license.
Hemp Products and Drug Tests
Aside from the legal issues surrounding Delta-8 and other readily available hemp products, you may also have wondered if they can make you fail a drug test. The short answer is – yes! Not all hemp products contain enough THC to show up on a drug test, but some of them do. While the Farm Bill draws a line at 0.3% Delta-9 THC, not all drug tests can necessarily distinguish between Delta-9 THC and its isomers. Even CBD products sometimes contain THC, and medical marijuana can show up on a drug test. Therefore, testing positive for marijuana and using illegal marijuana no longer go hand in hand like they used to. Knowing whether or not a hemp product will make your drug test come up positive for marijuana requires that you do research into the individual product you are using, and how the samples are tested in your particular drug test. If you do not know for sure, then remember it is possible for you to fail a drug test by using certain CBD products or Delta-8 THC (or Delta-10 or any other THC).
How could Ohio Marijuana Laws Be Changing?
There still is a large push in Ohio to make recreational marijuana use legal which would make the Delta-9 distinction irrelevant as far as Ohio law goes. As recently as August 20 th , 2021, the Ohio Attorney General approved summary language on a petition to legalize marijuana, which means the proposed law can now begin the process of making its way in front of the Ohio legislature. Until the law is officially enacted by the Ohio Government, however, Ohioans need to be aware that they could suffer major legal consequences from buying, selling, or possessing Delta-9 THC. Prohibited
On the other hand, as we mentioned above, the government may go in the opposite direction with law enforcement shutting down the buying, selling, and possession of THC isomers. They may crack down on Delta-8 because of its tendency to be obtained synthetically, Ohio may join other states in banning Delta-8, or there may be some other law that makes Ohio stricter on hemp products.
The new laws on Hemp have become quite complex, and they will likely continue to change. At Dearie, Fischer & Mathews, our lawyers have worked on cases involving marijuana in Warren County and many other Ohio counties for the past twenty years. We have seen many changes in the law and worked on many cases that were affected by these changes. If you are charged with a violation of marijuana laws, or if you have any other legal concerns, feel free to contact Dearie, Fischer & Mathews.