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Dank Dilemma: The Unregulated CBD Market and Drug Testing

Workers and employers are in a hazy situation when it comes to untested CBD products.

“We are in the Wild Wild West when it comes to CBD,” Adele Abrams exclaimed to a crowded room of attendees at the American Society of Safety Professionals (ASSP) Safety 2019 conference.

The employment law attorney and president of the Law Office of Adele L. Abrams P.C. in Beltville, Md. isn’t far from the truth. The absence of federal oversight of cannabinol (CBD)-based products has given rise to predatory companies looking to capitalize on the burgeoning CBD market, which is expected to increase to $23.7 billion through 2023, according to research firm Brightfield Group.

One-owner smoke shops to mass retailers are entering the game in an unprecedented time when marijuana legislation is at the forefront of discussion and the opioid epidemic continues to ravage homes and workplaces across the country. 

“The CBD market has been growing rapidly, but we will see unprecedented growth in 2019,” explains Bethany Gomez, Brightfield Group managing director. “The bulk of this growth is coming from large retailers like CVS, Walgreens, and Kroger entering the market and providing that availability to consumers.”

A 2019 Consumer Reports survey found that nearly 64 million Americans have admitted to using CBD for ailments ranging from chronic pain and anxiety to seizure disorders and cancer. With an unregulated market, variability in the potency and purity of CBD products is causing issues among consumers, including testing positive for Tetrahydrocannabinol (THC), the principal cannabinoid in cannabis.

It’s in the Chemistry

CBD is one of more than 100 chemical constituents in the cannabis plant that cause a physiological affect once it is consumed. The 2018 Agriculture Improvement Act (Farm Bill) gave the green light to farmers across the United States to begin cultivating industrial hemp, which contains less than .3% of THC, for CBD extraction. The U.S. Food and Drug Administration (FDA), released a statement, clarifying that although industrial hemp was declassified as a Schedule 1 substance, the agency would continue to regulate cannabis per Drug Enforcement Administration (DEA) regulations.

"In view of the proliferation of products containing cannabis or cannabis-derived substances, the FDA will advance new steps to better define our public health obligations in this area. We’ll also continue to closely scrutinize products that could pose risks to consumers. Where we believe consumers are being put at risk, the FDA will warn consumers and take enforcement actions," states FDA Commissioner Scott Gottlieb. "In particular, we continue to be concerned at the number of drug claims being made about products not approved by the FDA that claim to contain CBD or other cannabis-derived compounds. Among other things, the FDA requires a cannabis product (hemp-derived or otherwise) that is marketed with a claim of therapeutic benefit, or with any other disease claim, to be approved by the FDA for its intended use before it may be introduced into interstate commerce."

Products containing CBD come in various forms from vape cartridges and extracts to topical lotions, beers, coffee and even cosmetics. 

The popularity of CBD skyrocketed after widespread, aggressive marketing to users who desire alternatives to prescription medicines as well as the absence of the psychoactive effects associated with cannabis. Because CBD is extracted from the cannabis or hemp plant, users who ingest products that contain the derivative in theory will not test positive for THC.

With so many options on store shelves, consumers are rolling the dice when it comes to what they use, unless they are purchasing from a qualified, legal dispensary or trusted source. Both proponents and opponents of cannabis legalization are weighing in on the issue, agreeing that federal oversight is needed.  

“Unregulated CBD products can contain THC, which could adversely affect a consumer’s career,” says Stacey Worthy, legal counsel to Aimed Alliance. “Some products are marketed as containing only CBD; however, lab testing revealed that these products contained elevated levels of THC, which can show up on an employee’s drug test. Consumers could purchase a product like this unaware of the product’s THC content and they could lose their job because of it.”

The Department of Defense issued a warning to active duty service members, cautioning troops about the risks of ingesting unregulated CBD products. Testing positive for THC is grounds for discharge in the military.

“Regulating these products would prevent this from happening because the government could require that these products undergo laboratory testing to verify their contents and to ensure they do not contain THC over 0.3%,” says Worthy.

Standard workplace testing for cannabis identifies the presence of a specific metabolite known as carboxy-THC. CBD does not convert into carboxy-THC, explains Paul Armentano, National Organization for the Reform of Marijuana Laws (NORML) deputy director. 

“The issue, unfortunately, for some employees is that oftentimes, these commercially available products are of inconsistent or variable purity, and as a result, they contain other unwanted substances not identified on the label, like THC,” he says. “In a case of where an employer may inadvertently fail such a test by taking a CBD product, it’s not because of the CBD itself, it’s because the product was of inferior quality and actually contained THC.”

NORML recently provided testimony to the U.S. Food and Drug Administration (FDA), calling upon the agency to “move expeditiously” to bring regulations to govern the emerging market. In turn, pharmaceutical companies are devising alternatives that would meet the agency’s approval to be distributed at pharmacies nationwide.

GW Pharmaceuticals/Greenwich Biosciences, a biopharmaceutical company focused on discovering therapeutic cannabis-based medicines, has developed an oral formulation of purified CBD for use in seizure patients, the first cannabis plant-derived medicine ever approved by the FDA.

“We believe that patients should be protected against companies that are knowingly or negligently providing products that may be unsafe and promoting them for unapproved health or medical uses,” says Alice Mead, vice president, US professional relations. “We have spent over 20 years researching the safety and efficacy of cannabis for medicinal use. Our desire is to ensure that regulation of cannabis maintains critical public health and safety guardrails and encourages the further development of cannabis-derived medications through the FDA approval process, which we believe is in the best interest of patient safety.”

Public Perception

Americans wants a solution to unregulated CBD, and it isn’t prohibition. The FDA recently sought public comment on products containing cannabis or cannabis-derived compounds, receiving more than 4,200 responses overwhelmingly supporting decriminalization of marijuana as well as CBD.

Many respondents compared CBD to daily supplements such as multivitamins, which are readily available on store shelves.

 “You allow vitamins with very little regulation. You’ve allowed opioids to addict a huge percent of the population,” said Deborah Carlisle, one respondent. “CBD is a pain aid for many people. The tax money derived from legalization alone could help in education and so many other areas. The majority of the population wants an end to prohibition. Prohibition didn’t work for alcohol and this is a healthier choice. There are so many additives to food, artificial sweeteners and coloring but the FDA restricts adding CBD to food when it grows naturally and not artificially.”

Some comments detailed the alleged negative side effects of popular prescription drugs. Police officers, veterans and industry workers weighed in on the need for legislative action.

“I’ve been using CBD oil for a month now! Let me tell you about my experience with it! I’m a law enforcement officer (21-year veteran) with PTSD and anxiety,” an anonymous response says. “I was on Lexapro for two years and had zero drive, zero motivation and weight gain. I also have arthritis in my hands and back. I also have been diagnosed with degenerative disk disease. I took 2400 mg. of ibuprofen a day for pain and inflammation. Since starting CBD oil, I haven’t had to take either medication. I haven’t felt this great in years! Zero anxiety attacks!”

Despite widespread CBD use, organizations such as the National Safety Council (NSC) continue to caution against the use of cannabis and its derivatives, especially on the job.

“We know it is impairing, and we do believe there will be safety impacts in workplaces and on the roads,” says Jane Terry, NSC senior director of government affairs. “Whether it be alcohol, opioids, over the counter – using those and doing some of these safety-sensitive tasks just don’t mix, period.”

Exercising Caution

Individuals who live in states that have decriminalized marijuana currently are able to purchase CBD products that have been tested for efficacy and purity. Consumers purchasing online or at unlicensed retailers are taking a risk of products that contain THC and additives such as pesticides or chemicals.

“If one is going to purchase a CBD or a product marketed as a CBD-infused product, online or from some commercial manufacturer, outside of the confines of a state-licensed dispensary, then it is an entirely unregulated product, and it is entirely buyer beware,” Armentano explains. “Those individuals that are seeking a regulated CBD product, if they are fortunate enough to live in a state that regulates medical marijuana production, they have the option to obtain a CBD-infused product that has been subject to regulation.”

Because CBD is an organic component of marijuana, by default, in those jurisdictions, products that are available to state-registered patients must go through a specific regulatory process, he says. Before those products hit the shelves at state-licensed dispensaries, they must be tested to make sure the product does not contain high levels of adulterants or solvents.

The drug testing landscape will continue to evolve as regulation is defined. Companies that employ federal workers or public workers oftentimes are subject to federal drug testing guidelines, and those guidelines haven’t changed as a result of state-level changes in marijuana policy. 

Navigating the changing legislative landscape is a maze employers face. While the answer is black and white for most public entities, private employers have entered gray areas when it comes to updating substance use policies to comply with changing cultural and legal status of marijuana in their respective jurisdictions.

“In many ways, workplace drug testing for cannabis is a holdover from a bygone era, an era with which cannabis use was largely stigmatized and was criminalized virtually all throughout the United States,” Armentano says. “That simply isn’t the case anymore. And workplace drug testing programs ought to change with the times.”

One thing is for certain: the medicinal benefits of cannabis continue to draw heated debate from organizations, researchers, legislators and stakeholders across the country. A changing cultural landscape and shift away from Reefer Madness can only allow for greater research into the plant that has assisted users with their ailments.

“This is a relatively new thing and the market has grown exponentially, and it’s on track to grow the next few years,” Terry says. “One of the things we need with cannabis-related products like CBD is to get more data and research out there.” 
 

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