The U.S. Supreme Court ruled last week in a case involving truck driver Douglas Horn, who lost his job after testing positive for THC after ingesting a CBD tincture that was advertised as completely free of psychoactive compounds. We considered. Mr. Horn sued the companies that manufactured and sold the tinctures under the Racketeering and Corrupt Organizations Act (RICO), alleging that the defendants' mail and wire fraud had “damaged his business and property.”
The issue in Medical Marijuana Co. v. Horne is whether the economic loss suffered by Horne fits within the language of the statute, as the U.S. Court of Appeals for the Second Circuit ruled last year. But the lawsuit also highlights the weak scientific basis for the federally mandated drug test that Horn failed, reflecting an ongoing conflict between state and federal marijuana laws. I am doing it.
In 2012, Horn purchased Dixie X CBD Dew Drops 500mg tincture to treat pain and inflammation from lower back and shoulder injuries sustained in a truck accident. He was well aware that a positive marijuana test would jeopardize his job, so he inspected the product to make sure it didn't contain any federally illegal substances. He said he was reassured by Dixie's claims that its CBD extracts were made from hemp with less than 0.3 percent THC (the federal standard) and that the processed content was “0.00 THC.” .
According to a High Times article cited by Horne in his 2015 RICO lawsuit, the tincture is produced through a “proprietary extraction process” from “high-CBD hemp strains grown in secret foreign locations.” It is said that According to the article, the resulting tincture “contains 0% THC and up to 500mg of CBD.” “We import industrial hemp,” and the amount is “below the federal guideline for 0.3% THC,” said Dixie Managing Director Tripp Kever. “I am,” he declared. Keber said Dixie has “carefully considered state and federal law” and “does not believe it is operating in conflict with any federal law related to Dixie-X (hemp-based) products.” .
Keber offered similar assurances in several YouTube videos, saying the products were “THC-free” and “contain no THC.” Horn wrote in his Supreme Court brief that he contacted a customer service representative to be sure and “confirmed that Dixie X contains 'zero percent THC.'”
Based on these warranties, Mr. Horne's brief states, “he purchased and consumed Dixie X.''
A few weeks later, he was disappointed to learn that he had tested positive for marijuana during a “routine drug test.” 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 Mr. Horne has sued allege that Mr. Horne could have kept his job had he agreed to complete a “substance abuse program” and that “at the time Mr. Horne He had rejected that option.” They say he “eventually completed a substance abuse program and found work with another trucking company, where he was employed at the time of filing this lawsuit.” The implication is that Mr. Horne is responsible for some of the financial loss he has suffered, but as a result of his positive test, he is admitted to a “substance abuse program” even though he is not actually a drug abuser. His repulsion at the idea of registering is understandable. About marijuana, which he never consumed.
Horn couldn't think of any other reason for his marijuana test to be positive, so he ordered another tincture package and had it analyzed by a private lab, which found that Dixie X did indeed contain THC. It turned out that there is. The brief does not specify the level of THC, but says, “The laboratory refused to return the product to Mr. Horn for fear of violating federal law.”
Horn said that after the episode, Dixie revised its cannabis-based product FAQs to address the issue of whether cannabis-based products “will pass a drug test.” Dixie's answer: “Most workplace drug screens and tests target delta-9-tetrahydrocannabinol (THC) and do not detect the presence of cannabidiol (CBD). However, studies have shown that hemp edibles It has been shown that consuming our products and oils can lead to positive results confirmed by urine and blood screens.'' Therefore, if you are undergoing any kind of drug test, do not consume our products and seek medical advice. We recommend consulting with your agency, drug testing/testing company, or employer. ”
The RICO Defendants have acknowledged the amendment. “By April 2016, Dixie X's website explicitly advised customers that 'hemp foods and oils may cause confirmed positive results' on drug tests,” they said There is.
The drug test Mr. Horn failed is required by the U.S. Department of Transportation (DOT), and the trucking company requires employees with commercial driver's licenses to perform “safety-sensitive operations” on “public roads.” , requiring random testing. The cutoff level for urine tests is 50 nanograms of “marijuana metabolites” per milliliter for the initial test and 15 nanograms per milliliter for the confirmatory test.
These “marijuana metabolites” are non-psychoactive and can be detected in urine for up to a month after ingesting cannabis. These do not indicate whether the driver is currently impaired. Therefore, it is difficult to understand what good results have to do with the ability to drive a truck safely.
Even blood tests with short detection periods (usually a few hours, but up to a week for heavy cannabis consumers) are unreliable as measures of impairment and do not accurately match blood levels of THC. plug. “THC analysis does not predict impaired driving,” said Josh Bloom, director of chemistry and pharmacy at the National Council on Science and Health. He cites four reasons for this.
First, “the presence of a chemical or drug tells us nothing about the physiological response to that chemical or drug.” Second, at extremely low concentrations that can be detected with “modern analytical techniques.” The potential for harm or injury from chemicals or drugs is essentially zero. Third, the “pharmacokinetics of THC'' “can remain in the body for up to a month,'' making it impossible to determine “when it was consumed'' or “how much was consumed.'' is. Fourth, “there are no reliable standard concentrations that define impairment.''
Although DOT testing requirements are presented as a safety measure, they actually serve to weed out people who consume cannabis, whether or not they are impaired on the job. This policy is the same as requiring truck drivers to never drink alcohol, even if drinking does not affect their job performance.
When it comes to alcohol, the DOT considers a positive blood test if the alcohol concentration is 0.02 percent or higher, which is one-quarter of the level that would automatically result in a DUI conviction in every state except Utah. be. Truck drivers don't have to worry about their off-duty recreation jeopardizing their livelihood, as long as they drink in their spare time and don't consume alcohol right before a blood draw.
This distinction between marijuana and alcohol is logically and scientifically indefensible. This only makes sense in the context of the federal prohibition on marijuana, which conflicts with laws in 38 states that allow marijuana for medical use, 24 of which also allow recreational use.
“Although the flawed science used to regulate marijuana is not in court, Mr. Horn's predicament stems from these flaws. In need of relief from severe pain, he ordered the flawed product. If they did, companies would generate profits that were almost meaningless,” Bloom wrote. This test should be punished. This is a yes/no test question that can determine whether a particular device can detect trace amounts of a drug that have, or (possibly) no, real-life impact. ”
