New rules released by the Department for Transport warn medical examiners about CBD

On August 15, draft regulations were published in the Federal Register that guide medical examiners (MEs) who conduct physical examinations for commercial drivers and are responsible for certifying drivers for the U.S. Department of Transportation (DOT).

Entitled Driver Qualifications: Handbook for Medical Examiners and Proposed Regulatory Guidance for Medical Advice Criteria, these draft rules warn ME against consuming CBD in their patients and explain that it can still result in some drivers failing their exams . The Federal Motor Carrier Safety Administration (FMCSA) handbook states that drivers are allowed to use CBD as it is legal federally.

DOT certification takes two years, but if drivers use cannabis, they still can’t qualify, according to the section of the draft titled “Use of Scheduled Drugs or Substances.” “A driver who uses marijuana cannot be physically qualified even if marijuana is legal in the state where the driver resides for recreational, medicinal, or religious purposes,” the rules state.

As it stands, the draft rule ME advises that while CBD is legal statewide, the Food and Drug Administration (FDA) does not regulate all products and cannot guarantee that a product’s labels will not be false. quantity or the accuracy of THC. “The United States Food and Drug Administration (FDA) does not currently determine or certify the THC content in products containing cannabidiol (CBD), so there is no government oversight to ensure that the labels on CBD products containing claiming to contain less than 0.3% dry weight THC are accurate. Therefore drivers using these products do so at their own risk.”

More directly, the rules guide medical professionals on how to conduct the investigation considering CBD. “The agency encourages MEs to take a comprehensive approach to medical certification and to consider any additional relevant health information or assessments that can objectively support the medical certification decision. MEs may require drivers to obtain and provide non-DOT drug test results during the medical certification process.”

The FMCSA also issued draft rules in 2021 that only briefly mentioned CBD. “The Food and Drug Administration does not currently certify THC content in CBD products, so there is no government oversight to ensure labels are accurate. Therefore, drivers using these products do so at their own risk.” The 2020 draft rule made no mention of CBD, but said cannabis was not allowed.

In July, DOT sent out a newsletter reminding drivers that cannabis use is illegal and the current status of unregulated CBD products that may contain more than the legal THC limit. “Recently, some state and local governments have passed laws prohibiting employers from testing for marijuana,” the newsletter reads. “[Federal Transit Administration] Employers are reminded that state and local legislative initiatives do not affect DOT-regulated testing programs. Marijuana is still a drug listed on Schedule I of the Controlled Substances Act.”

The newsletter also includes a chart detailing the number of return-to-duty (RTD) drug tests as well as the number of employers covered by the FTA that conduct RTD drug tests. One of the potentially telling statistics is the increase in both the number of return-to-duty tests being conducted and the number of FHA-covered employers conducting this type of testing,” the newsletter reads. “These data indicate a trend towards a ‘second chance’ policy versus a ‘zero tolerance’/quit policy after a DOT drug violation.” In 2021 there were 892 RTD drug tests, with 236 drug tests by employers carried out that are covered by the free trade zone.

In May, Rep. Earl Blumenauer sent a letter to Secretary of Transportation Pete Buttigieg expressing how DOT cannabis restrictions are causing job losses. “The federal government should make it easier for drivers who are already qualified to remain in the profession and not oust them. Outdated and unfair federal drug policy is out of step with reality and directly contributes to truck shortage crisis,” Blumenauer wrote. “Too many of the 2.8 million Americans who hold a commercial driver’s license are not working because of past cannabis testing and the difficulty of re-qualifying for the service. Getting these trained, skilled, and capable drivers back on the road will unravel supply chains faster and more efficiently. I am very interested in the steps your department is taking to ensure these skilled drivers have the opportunity to return to work, regardless of their past cannabis use.”