The draft rules were published in the Federal Register on August 15which guides medical examiners (MEs) who conduct physical examinations for commercial drivers and are responsible for certifying drivers for the US Department of Transportation (DOT).
Called the “Driver Qualifications: Medical Examiner’s Handbook and Medical Advice Criteria Proposed Regulatory Guidance”, these draft rules warn MEs against using CBD in their patients and explain that it could still cause some drivers to fail their tests. The Federal Motor Carrier Safety Administration (FMCSA) handbook specifies that drivers can use CBD, because it is federally legal.
DOT certification lasts two years, but if drivers use cannabis, they still can’t qualify, according to the section of the draft called “Use of Scheduled Drugs or Substances.” “A driver who uses marijuana may not be physically qualified even if marijuana is legal in the state where the driver resides for recreational, medicinal, or religious use,” the rules say.
In its current form, the draft rules warn MOEs that while CBD is legal nationwide, the Food and Drug Administration (FDA) does not regulate all products and there can be no guarantee that product labels don’t do it wrong. list the amount of CBD or the accuracy of THC. “The US Food and Drug Administration (FDA) currently does not determine or certify THC levels in products containing cannabidiol (CBD), so there is no federal oversight to ensure that product labels CBD products that claim to contain less than 0.3% dry weight of THC are accurate. Therefore, drivers who use these products do so at their own risk.”
More directly, the rules guide MEs on how to conduct the examination with CBD in mind. “The Agency encourages MEs to take a comprehensive approach to medical certification and to consider any additional relevant health assessment or information that may objectively support the medical certification decision. MEs may request that drivers obtain and provide the results of a non-DOT drug test during the medical certification process.”
The FMCSA also issued draft rules in 2021 also, which only briefly mentioned CBD. “The Food and Drug Administration does not currently certify the THC levels of CBD products, so there is no federal oversight to ensure that the labels are accurate. Therefore, drivers using these products are doing so under the your own risk”. There was no mention of CBD in the 2020 draft rules, but it did state that cannabis was not allowed.
In July, DOT sent out a bulletin reminding drivers that cannabis consumption is prohibited and the current status of unregulated CBD products that could contain more than the legal THC limit. “Recently, some states and local governments have passed legislation that prohibits employers from testing for marijuana,” newsletter states “[Federal Transit Administration] Employers are reminded that state and local legislative initiatives are unrelated to DOT-regulated testing programs. Marijuana is still a Schedule I drug under the Controlled Substances Act.”
The newsletter also includes a chart outlining the number of return-to-duty drug (RTD) tests, as well as the number of FTA-covered employers that are conducting RTD drug tests. One of the potentially telling statistics is the increase in both the number of return-to-service tests performed and the number of FTA-covered employers performing such tests.” the bulletin states. “These data indicate a trend toward a ‘second chance’ policy versus a ‘zero tolerance’/termination policy after a DOT drug violation.” In 2021, there were 892 RTD drug tests, with 236 drug tests performed by employers who are covered by FTA.
In May, Rep. Earl Blumenauer sent a letter to Transportation Secretary Pete Buttigieg expressing how the DOT’s cannabis restrictions are leading to job losses. “The federal government should be making it easier for already qualified drivers to stay in the profession, not forcing them out. Outdated and unfair federal drug policies are out of step with reality and directly contributing to the drug crisis ‘truck shortage’. Blumenauer wrote. “Too many of the 2.8 million Americans who hold commercial driver’s licenses are out of work because of past cannabis tests and the difficulty they have in re-qualifying for service. Getting these trained, qualified and capable drivers get back on the road untethering supply chains more quickly and efficiently. I am very interested in the steps your department is taking to ensure these qualified drivers have opportunities to return to work, regardless of their past cannabis use.” .