The U.S. Supreme Court last week considered a case involving a trucker, Douglas Horn, who lost his job because he tested positive for THC after consuming a CBD tincture that was advertised as completely free of that psychoactive compound. Horn sued the companies that made and marketed the tincture under the Racketeer Influenced and Corruption Organizations (RICO) Act, arguing that he was “injured in his business or property by reason of” the defendants’ mail and wire fraud.
The issue in Medical Marijuana Inc. v. Horn is whether the economic losses that Horn suffered fit that statutory language, as the U.S. Court of Appeals for the 2nd Circuit held last year. But the case also highlights the weak scientific basis for the federally mandated drug test that Horn failed, which reflects the ongoing conflict between state and federal marijuana laws.
In 2012, Horn bought Dixie X CBD Dew Drops 500 mg Tincture to treat the pain and inflammation caused by hip and shoulder injuries he had suffered in a truck accident. Since he was well aware that testing positive for marijuana would endanger his job, he investigated the product to make sure it did not contain any federally illegal substances. He says he was reassured by Dixie’s claim that its CBD extract was made from hemp containing less than 0.3 percent THC (the federal limit) and that, after processing, it contained “0.00 THC.”
According to a High Times article that Horn cited in his 2015 RICO lawsuit, the tincture was produced via “a proprietary extraction process” from “a strain of high-CBD hemp grown in a secret, foreign location.” The article said the resulting tincture “contains 0% THC and up to 500 mg of CBD.” Tripp Keber, Dixie’s managing director, averred that “we are importing industrial hemp” that is “below federal guidelines for THC, which is 0.3%,” and “extracting the CBD.” Keber said Dixie had “meticulously reviewed state and federal statutes,” and “we do not believe we are operating in conflict with any federal law as it’s related to the Dixie X (hemp-derived) products.”
Keber offered similar assurances in several YouTube videos, saying those products were “THC free” and contained “no THC.” Just to make sure, Horn says in a Supreme Court brief, he contacted a customer service representative, who “confirmed that Dixie X contained ‘zero percent THC.'”
Based on those assurances, Horn’s brief says, he “purchased and consumed Dixie X in
September 2012.” A few weeks later, he was dismayed to learn that he had tested positive for marijuana in “a routine random drug screening.” As a result, “his employer immediately fired him.” He “lost his career and income,” which meant “financial ruin” for his family.
Dixie and the other companies that Horn sued say he could have kept his job if he had agreed to complete “a substance abuse program”—”an option that Horn declined at the time.” They say he “eventually completed a substance abuse program and found work at other trucking companies, where he was employed as of filing this suit.” Although the implication is that Horn is partly responsible for the financial loss he suffered, it is understandable that he would rebel at the idea of enrolling in “a substance abuse program” when he was not in fact a substance abuser, based on a positive test for marijuana that he never consumed.
Since Horn could think of no other reason why he would test positive for marijuana, he ordered another package of the tincture and had it analyzed by a private lab, which found that “Dixie X did, in fact, contain THC.” The brief does not specify the level of THC, but it says “the lab refused to mail the product back to Mr. Horn for fear of violating federal law.”
After that episode, Horn notes, Dixie revised its FAQ about its hemp-derived products, addressing the question of whether they “show up in a drug test.” Dixie’s answer: “Most workplace drug screens and tests target delta9-tetrahydrocannabiol (THC) and do not detect the presence of Cannabidiol (CBD). However, studies have shown that eating hemp foods and oils can cause confirmed positive results when screening urine and blood specimens. Accordingly, if you are subject to any sort of drug testing, we recommend (as does the United States Military) that you DO-NOT ingest our products, and consult with your healthcare, drug screening/testing company or employer.”
The RICO defendants confirm that revision. “By April 2016,” they say, “Dixie X’s website explicitly advised customers that ‘hemp foods and oils can cause confirmed positive results’ on drug tests.”
The drug test that Horn failed was mandated by the U.S. Department of Transportation (DOT), which requires trucking companies to randomly screen employees with commercial driver’s licenses because they perform “safety-sensitive functions” on “public roads.” For urine testing, the cutoff levels are 50 nanograms of “marijuana metabolites” per milliliter in the initial test and 15 nanograms per milliliter in the confirmatory test.
Those “marijuana metabolites” are not psychoactive, and they can be detected in urine for up to a month after cannabis consumption. They do not indicate whether a driver is currently impaired. It is therefore hard to see what a positive result has to do with anyone’s ability to safely operate a truck.
Even blood testing, which has a shorter detection window (typically a few hours but up to a week for heavy cannabis consumers), is an unreliable measure of impairment, which does not correspond neatly with THC blood levels. “THC analysis fails to predict impaired driving,” notes Josh Bloom, director of chemical and pharmaceutical science at the American Council on Science and Health. He cites four reasons for that.
First, “the presence of a chemical or drug tells us nothing about the physiological response to that chemical or drug.” Second, “the chances of harm or impairment by any chemical or drug are essentially nil” at the extremely low concentrations that can be detected by “modern analytical techniques.” Third, “the pharmacokinetics of THC,” which “can persist in the body for as long as one month,” make it “impossible to determine when it was consumed” or “how much was consumed.” Fourth, “there is no reliable standard concentration that defines impairment.”
Although the DOT’s testing mandate is presented as a safety measure, in practice it serves to exclude anyone who consumes cannabis, regardless of whether he is ever impaired on the job. This policy is akin to demanding that truckers never drink, even if their alcohol consumption has no impact on their job performance.
When it comes to booze, the DOT counts a blood test as positive if the alcohol concentration is 0.02 percent or more, which is one-fourth the level that automatically makes someone guilty of driving under the influence in every state but Utah. As long as a trucker drinks in his spare time and does not consume alcohol shortly before the blood is drawn, he need not worry that his off-duty recreation will endanger his livelihood.
This distinction between marijuana and alcohol is logically and scientifically indefensible. It makes sense only in the context of federal marijuana prohibition, which conflicts with the laws of the 38 states that allow medical use of cannabis, 24 of which also allow recreational use.
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