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CBD Oil: It’s Complicated

(Summer 2018) Products containing CBD oil are flooding the market. They’re being sold online, by health food stores, in vape shops and at some grocery stores. CBD oil is touted as somewhat of a cure-all for conditions from pain to anxiety, and it’s being added to a gamut of items from beauty products to beer. But what is the real story behind CBD? What are the legalities surrounding it? And, most importantly, how might CBD oil usage impact the workplace?

What is the source of CBD oil?

Cannabidiol (otherwise known as CBD) oil by itself has little, if any, psychoactive effects and is just one of many substances found in the flowers of two types of cannabis plants – marijuana and industrial hemp. The marijuana plant has concentrated levels of delta-9-tetrahydrocannabinol (THC), the chemical that produces intoxication or a “high” among the drug’s users. Marijuana also contains CBD, but at a much lower level than THC. Conversely, industrial hemp contains significantly higher concentrations of CBD than the marijuana plant and negligible amounts of THC. Legally, industrial hemp THC levels must register at 0.3% or less. Farmers in various parts of the world grow hemp to harvest its durable fibers to produce rope, fabric and a variety of other goods.

For what medical purposes do people use CBD oil?

Because of legality issues, research on the medical efficacy of CBD has been sparse and usually conducted with small groups of participants. The most well-known use of the compound is with epileptic patients. In fact, the U.S. Food and Drug Administration (FDA) is considering the approval of the CBD-based drug Epidiolex®, which was formulated to relieve two types of epilepsy in children.

There is some research supporting CBD’s ability to reduce pain, lessen nausea and calm spasticity in patients with multiple sclerosis. Currently, most of CBD oil’s success has only been seen in the form of user testimonials, as devotees say it also helps with inflammation and insomnia. Experts believe there could be potential uses for CBD to treat conditions such as depression, anxiety, arthritis, cancer and diabetes. Additionally, the World Health Organization (WHO) issued a report in November 2017 stating that its Expert Committee on Drug Dependence (ECDD) does not find consumption of pure CBD to be dangerous. The committee noted that CBD could offer potential benefits for patients who have epilepsy and a host of other physical complaints. Although, at the same time, the WHO was careful to say it was not endorsing the use of the substance.

Is CBD legal?

Google the phrase “buy CBD oil,” and many of the results lead to websites boasting that the substance is legal throughout the United States. But is it really? Well, it depends on whom you ask.

Even though THC levels are, by definition, negligible (and sometimes nonexistent) in CBD derived from industrial hemp, the plant is still in the cannabis family. Currently, the U.S. Drug Enforcement Administration (DEA) classifies all cannabis as a Schedule I drug, defined as having no medicinal value and considerable risk for abuse.

When queried about the legality of CBD oil, DEA Special Agent Cheryl A. Davis, public information officer for the Detroit Field Division, gave a definitive answer: “No, sales of low-THC CBD are not legal in Ohio or any other state in the U.S. as it relates to federal regulation.” Oils obtained from cannabis plants for medical purposes are illegal under both the Food and Drug Administration’s (FDA) Food, Drug, and Cosmetic Act as well as the United States’ Controlled Substance Act. Davis pointed out, however, that state laws regarding CBD may vary from federal legislation.

And vary they do. Of course, there is a patchwork of state laws throughout the nation legalizing marijuana as medicine and for recreational use.  And some states address CBD oils specifically, and others do not.  For example, Ohio’s House Bill 523 (HB 523) legalized medical marijuana in 2016 but says nothing about the status of CBD oil in the Buckeye State. So, what does that mean? It is unclear but likely means, according to Grant Miller, medical marijuana patient and caregiver liaison at the State of Ohio Board of Pharmacy, that CBD oil will be treated like medical marijuana once everything is operational. “CBD oil is included in [the] definition of marijuana, whether as an extract or wholly synthesized,” said Miller.

Meanwhile, other states have legislation on the books specific to the use of CBD. The oil is currently legal in 30 states in which marijuana is legal medically and/or recreationally. Seventeen other states have ratified CBD-specific legislation. So, although still federally illegal, depending on where individuals live, or whether they have a state-approved medical marijuana card, the use of CBD oil might be legal under state law.

But this doesn’t mean CBD use is being ignored by law enforcement. “The DEA targets high-level drug traffickers and those that pose the highest risk to the community, including individuals trafficking marijuana and/or derivatives,” said Special Agent Davis. Also, police in some states have been known to raid stores selling CBD and/or charge individuals in possession of CBD with crimes. The FDA has also issued warning letters to four companies that sell CBD products online, saying the items are “misbranded drugs” in violation of the Food, Drug, and Cosmetic Act.

Can CBD labels be trusted?

“Anyone that chooses to purchase illegal substances should always be concerned of the actual product, ingredients or substance they are receiving,” warned Special Agent Davis. “Without proper federal regulations, especially from the FDA, illegal items sold for consumption can be misleading,” Davis continued. “Furthermore, sellers are not required to inform purchasers of the ingredients contained in the product, nor are they required to be truthful about the product’s benefits or detriments.”

As Davis pointed out, just because a bottle of oil is labeled as containing CBD extracted from industrial hemp, how does the retailer or user know it’s not made from marijuana instead – or something else entirely? In May, CBS.com reported that the Centers for Disease Control and Prevention (CDC) called for individual states to initiate quality control and regulatory measures for CBD oil. The CDC’s recommendation came on the heels of over 50 Utah residents became ill after ingesting a man-made mixture falsely sold as CBD oil. Colorado is leading the way on this front and will begin regulating hemp like other food products under its state food manufacturing laws this August.

Once HB 523 goes into effect in Ohio, there will be a layer of protection for patients related to their medical marijuana and thereby, there may be a layer of protection around CBD oil. “All marijuana products dispensed in MMCP [Ohio’s Medical Marijuana Control Program] dispensaries will have to comply with the regulations of the program,” Miller said. “All products will have a known source as well as known quantities of active ingredients thanks to testing procedures conducted by licensed testing laboratories.”

How might CBD oil usage affect drug testing?

Again, the waters are murky. It’s hard to know if a CBD product has THC in it or not. Members of the Substance Abuse and Mental Health Services Administration’s (SAMHSA) Drug Testing Advisory Board Sean J. Belouen, senior pharmacology and regulatory policy advisor, and Ron Flegel, director of division workplace programs, explained in an email. “There have been occasions where extracted CBD products still have some cross contamination with THC that will show-up potentially on a drug test.”

Therefore, it is possible to have enough THC in one’s system to result in a positive drug test. Furthermore, shared Belouen and Flegel, for companies that have a medical review officer [MRO] involved in their testing process, the MRO would report this test positive, even if the donor cited CBD use to explain the positive test.

So, what’s an employer to do?

So, since now is the time for Ohio employers to hone their policies around whether to make exceptions around the use of marijuana as medicine (which will show drug test results for THC), it is responsible to give employees fair notice around CBD, especially due to the amount of confusion with this substance. Without controlled quality assurances for processing, testing and labeling, the consumer of CBD oils needs to be informed and responsible for how their actions will be dealt with by their employer.

Being prepared is the main objective here. To make sure your company is ready for a case involving CBD oil and an employee’s positive test for marijuana, Working Partners® suggests that you act now by taking this information to your legal counsel.

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DISCLAIMER: This publication is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the publication are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.