SCOTUS Cannabis Fraud Case Highlights Illogicality of Federal Drug Testing Regulations

The U.S. Supreme Court last week heard a case involving a trucker named Douglas Horn, who lost his job because he tested positive for THC after consuming a CBD tincture that was described as completely free of it this psychoactive compound was advertised. Horn sued the companies that manufactured and marketed the tincture under the Racketeer Influenced and Corruption Organizations (RICO) Act, arguing that he was “injured to his business or property” by the defendants' mail and wire fraud.

The problem in Medical Marijuana Inc. v. Horn is whether the economic losses Horn suffered meet that statutory language, as the U.S. Court of Appeals for the 2nd Circuit ruled last year. But the case also highlights the weak scientific basis for the federally required drug test that Horn failed, reflecting the ongoing conflict between state and federal marijuana laws.

In 2012, Horn purchased Dixie X CBD Dew Drops 500 mg tincture to treat the pain and inflammation caused by hip and shoulder injuries he suffered in a truck accident. Knowing that a positive marijuana test would jeopardize his job, he examined the product to ensure it did not contain any federally illegal substances. He said he was reassured by Dixie's claim that its CBD extract was made from hemp with a THC content of less than 0.3 percent (federal limit) and that after processing it was “0.00 THC.” contained.

According to a High times According to an article Horn cited in his 2015 RICO lawsuit, the tincture was made through “a proprietary extraction process” from “a high-CBD strain of hemp grown in a secret, foreign location.” The article states that the resulting tincture “contains 0% THC and up to 500 mg of CBD.” Tripp Keber, Dixie's general manager, explained that “we import industrial hemp” that is “below the federal guidelines for THC, which is 0.3%,” and that “we extract CBD.” Keber said Dixie has “carefully reviewed state and federal laws” and “we do not believe we are in conflict with any federal law as it relates to the (hemp-derived) Dixie X products.”

Keber made similar assurances in several YouTube videos, saying these products were “THC-free” and contained “no THC.” Just to be sure, Horn says in a Supreme Court brief, he contacted a customer service representative who “confirmed that Dixie X contains 'zero percent THC.'

Based on these assurances, Horn's pleading states, he “purchased and consumed Dixie X.”
September 2012.” A few weeks later, he was dismayed to learn that he had “tested positive for marijuana in a routine random drug test.” His employer then “fired him immediately.” He “lost his career and his income, which meant “financial ruin” for his family.

Dixie and the other companies Horn sued said he could have kept his job if he had agreed to complete “a substance abuse program” – “an option Horn rejected at the time.” They say he “eventually completed a substance abuse program and found work at other trucking companies where he was employed at the time of filing this lawsuit,” although it is implied that Horn is partially responsible for the financial loss he suffered , it's understandable that he balked at the idea of ​​enrolling in a “substance abuse program” when in fact he wasn't a drug addict due to a positive test for marijuana, which he never used.

Unable to think of any other reason why he would test positive for marijuana, Horn ordered another package of the tincture and had it analyzed by a private laboratory, which found that “Dixie X actually contained THC.” The letter does not specify the THC content, but states: “The laboratory refused to return the product to Mr. Horn for fear of violating federal law.”

After that episode, Horn said, Dixie revised its FAQ about its hemp-derived products to address the question of whether they would “show up on a drug test.” Dixie’s response: “Most workplace drug screenings and tests target Delta9-tetrahydrocannabiol (THC) and do not detect the presence of cannabidiol (CBD). However, studies have shown that consumption of hemp foods and oils can lead to confirmed positive results in urine and blood tests.” Therefore, if you are subject to drug testing, we (as well as the US military) recommend that you use our products DO NOT take and contact your healthcare provider, drug testing/drug testing company, or employer.

The RICO defendants confirm this revision. “Until April 2016,” it says, “Dixie’s website

The drug test that Horn failed was mandated by the U.S. Department of Transportation (DOT), which requires trucking companies to randomly check employees with commercial driver's licenses because they perform “safety-related functions” on “public highways.” For urine tests, the limits are 50 nanograms of “marijuana metabolites” per milliliter in the first test and 15 nanograms per milliliter in the confirmatory test.

These “marijuana metabolites” are non-psychoactive and can be detected in urine for up to a month after cannabis consumption. They do not provide any information about whether a driver is currently impaired. It is therefore difficult to see what a positive result has to do with a person's ability to operate a truck safely.

Even blood tests, which have a shorter detection window (typically a few hours, but up to a week for heavy cannabis users), are an unreliable measure of impairment that does not accurately correlate with THC blood levels. “THC analysis cannot predict impaired driving,” notes Josh Bloom, director of chemical and pharmaceutical science at the American Council on Science and Health. He gives 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: “The likelihood of harm or impairment from a chemical or drug is at the extremely low concentrations associated with ” “modern analysis techniques” can be proven to be essentially zero. Third, “the pharmacokinetics of THC,” which “can remain in the body for up to a month,” make it “impossible to determine when it was consumed” or “how much was consumed.” Fourth, “There is no reliable standard concentration that defines impairment.”

Although the DOT's testing mandate is presented as a safety measure, in practice it serves to exclude anyone who uses cannabis, regardless of whether they are ever impaired at work. This policy is similar to requiring that truck drivers never drink, even if their alcohol consumption does not affect their job performance.

When it comes to alcohol, the DOT counts a blood test as positive if the alcohol concentration is 0.02 percent or higher, which is one-quarter of the level at which someone is automatically guilty of driving under the influence in all states except Utah. As long as a trucker drinks alcohol in his free time and does not consume alcohol shortly before the blood test, he does not have to fear that his off-duty time off will endanger his existence.

This distinction cannot be justified logically or scientifically. This only makes sense in the context of the federal marijuana ban, which conflicts with the laws of the 38 states that allow medical use of cannabis, 24 of which also allow recreational use.

“While the flawed science used to regulate marijuana remains unchallenged,” Bloom writes, “Mr. Horn’s predicament arises from these flaws. If he, needing relief from severe pain, ordered a defective product, it caused largely insignificant damage to a company.” The test should be penalized. This is the problem with yes-no tests, which can only determine whether a specific instrument can detect a tiny amount of a drug that may or may not (probably) have an impact on real life.”