Trucking on the sidelines of cannabis deregulation
While marijuana is still considered an illegal Schedule I drug under federal law by the Controlled Substances Act, the United States Congress recently came close to passing a bill to decriminalize cannabis nationally. .
For those in the trucking industry – which is heavily regulated by the federal government – it’s important to know how (if any) changes to the federal marijuana consumption law may affect the operation of a fleet. commercial.
For your information, then Senator Kamala Harris was one of the sponsors of the July 2019 Marijuana Opportunities Reinvestment and Deregistration Act (MORE). This bill sought, among other things, to decriminalize marijuana (establish fines for offenses, as opposed to jail time), clear some previous marijuana-related convictions, and create a fund to help with the treatment of marijuana. drug addiction. The MORE law was passed by the Democratic-controlled House of Representatives in early December 2020, but ultimately died in the Republican-controlled Senate later that month.
With the former senator now better known as Vice President Harris, a bill similar to the MORE law is expected to be introduced in the coming months.
Senate Majority Leader Chuck Schumer (D-NY), Senator Corey Booker (D-NJ) and Senator Ron Wyden (D-OR) recently announced that they are in the process of drafting a new bill on marijuana reform.
If the bill comes to fruition, it is expected that it will, once again, be passed by the Democratic-controlled House. However, with the Senate currently reflecting a 50/50 split among party seats, Harris, who is also Speaker of the Senate, has the ability to tie a vote if Senators vote on the bill along party lines. Harris will almost certainly vote for the bill, sending it to President Biden’s office for final approval.
President Biden appears to support the federal decriminalization of marijuana by transferring it to a Schedule II substance under the Controlled Substances Act, making it more readily available for medical use and subject to the oversight of the Food and Drug Administration. He does not currently support the legalization of marijuana – a trend many states have recently embarked on. With that in mind, it is very possible that a bill, which is akin to the MORE law, will be passed in the near future, making marijuana somewhat legal at the federal level.
As for the trucking industry, the Department of Transportation (DOT) currently prohibits drivers from using any kind of Schedule I substance, which includes all forms of marijuana, and subjects drivers to drug testing. drug testing for all substances listed in Annex I.
While it remains uncertain whether the reclassification of marijuana as a Schedule II substance would allow certain uses of marijuana to be deemed acceptable to DOT (such as medical use), it is unlikely that the Decriminalization changes its stance on marijuana use among truck drivers because they occupy a “safety sensitive” position (like pilots, bus drivers, train engineers and others).
Notably, in October 2009 – after the Department of Justice issued guidelines for federal prosecutors regarding the prosecution of cases involving the use of medical marijuana – the DOT issued a drug policy and alcohol and a notice of compliance, which reiterated that no use of marijuana was acceptable under any circumstances due to public safety concerns.
There is no indication that this policy would change if marijuana were formally decriminalized under federal law, with even the MORE law allowing the Secretary of Transportation to continue to ban the use of marijuana if it was considered a risk to the safety of people. transport.
Whether or not the categorization of marijuana is changed by the federal government, trucking companies should also be aware of how the DOT views cannabinoid use, or CBD, among drivers.
A by-product derived from the cannabis sativa plant, countless CBD products have recently entered the market to help those suffering from anxiety, cognitive issues, involuntary movement disorders, and pain. These products are not regulated by the Food and Drug Administration and may contain a small amount of tetrahydrocannabinol (THC) – the main psychoactive component in marijuana.
Given the DOT’s ban on marijuana use, many drivers are turning to over-the-counter CBD products for medical purposes. Such use may ultimately be a problem (and lead to a positive conclusion for the use of marijuana in a drug test) as there have been numerous occasions when the unregulated CBD industry has put on the drug. market for products containing a higher THC level than indicated on the product label.
In other words, if a driver unknowingly uses a CBD product, which contains a THC level greater than 0.3%, he / she will test positive for marijuana and be forced off the road. subjected to addiction counseling and kept away. a truck until a negative test is obtained.
The DOT makes no exceptions for drivers who fail a drug test by simply using CBD products or who are otherwise under the supervision of a physician regarding the use of products containing THC. .
Trucking industry players should be aware that – in the eyes of the federal government, and despite the potential legalization or decriminalization of marijuana at the national level – the DOT’s zero-tolerance policy on use is unlikely. of marijuana products by truckers is changing. at any time in the near future.
Jeffrey L. Oster is a partner at the law firm Vaughan Baio & Partners, which represents various commercial vehicle clients in prosecutions in Pennsylvania, New Jersey and Maryland. He can be reached at [email protected]