You can’t look at the TV or the internet or talk to friends or coworkers without being besieged with “information” and anecdotal testimonials on CBDs. I am asked virtually every day in my AME practice about pilots' use of CBD products. This subject was also brought up several times at recent FAA conferences that I attended.
Cannabidiol (CBD) is a naturally occurring compound found in the flowers of the cannabis plant (marijuana). Purported uses include everything from arthritis relief (in both humans and pets), stress reduction, and as a sleep aid, among others. There is now even a legal prescription medication based on this substance.
These products are often found in the form of CBD oil. And, you can buy CBD oil just about anywhere. The 2018 Farm Bill, as passed by U.S. Congress, includes a provision that legalizes the cultivation of hemp, which is basically cannabis with a very low tetrahydrocannabinol (THC) content (less than 0.3 percent ). Therefore, growing hemp is now legal on the federal level.
CBD derived from hemp oil is supposed to contain, therefore, less than 0.3 percent THC. However, the important take-home message here is that, so far anyway, there is no true oversight of the actual production of CBD oil. You really don’t know how much THC there will be in any CBD product.
FAA representatives have stated more than once that they cannot specifically prohibit pilots from using CBD products. Great news! Case closed, right? Who cares about how much THC is in the product if the FAA says that it can’t specifically tell a pilot not to take CBD products? Not so fast.
Please remember that the active ingredient in marijuana is THC. The FAA is quite clearly not endorsing the consumption of THC. The Code of Federal Regulations (CFR) continues to include marijuana (and its active component, THC) as a federally illegal drug. It falls under Schedule 1 of the Controlled Substances Act (CSA; enacted by Congress in 1970). Schedule 1 drugs are those “with no currently accepted medical use and a high potential of abuse.”
Drugs that fall under this schedule also include Ecstasy, LSD, and heroin, for example. Other drugs of abuse tested for in pilots actually fall under different Schedules, and those include morphine, cocaine, methamphetamine, and the addition to the DOT testing protocol in 2018 of some of the prescription narcotics.
At the time of the writing of the CSA and CFRs, there was no consideration for individual state-by-state “legalization” of marijuana or any associated products. Further, the CSA and CFRs were written long before the 2018 Farm Bill legalized the production of hemp—and hemp-derived products with theoretically less than 0.3 percent THC.
There is no regulated oversight to ensure that the THC level in a CBD-containing product is as low as it’s supposed to be. During a recent FAA conference, there was discussion of a recent study of 15 CBD-containing products. The majority of these products contained more THC than they reportedly advertised.
There was a recent program on CBS This Morning that also looked at CBD products. In this smaller study, they found that the majority of the products did not contain more CBD than advertised. However, most of these listed “recommended dosages” that would ultimately lead the consumer into a higher THC exposure than expected.
Until if and when CBD products are more strictly regulated, do you want to risk your career to use a substance that “might” be useful for certain medical symptoms and conditions but still might contain a DOT-prohibited THC level?
As far as “when” such use might be legal, I’d recommend not holding one’s proverbial breath. First of all, Congress would have to legalize marijuana federally (not the hemp discussed above, but marijuana itself, with its inherently higher THC level). Then, both the CSA and CFRs would have to be amended to permit legal usage of marijuana. Then, the FAA and DOT would have to review this, and decide what kind of “bottle to throttle” (so to speak) rule might apply, or whether they’d continue to deem marijuana a “never, ever” in pilots—it would be at their discretion to do so. This might take a while, to say the least.
That said, Canada has recently enacted a 28-day rule, in essence permitting the use of marijuana so long as at least 28 days elapse before flying. Needless to say, I’m sure there will be some complications resulting from this ruling to deal with here in the U.S. We are already seeing too many theoretically “innocent or unintentional” exposures to marijuana causing positive DOT tests.
A point to remember is that the CFRs and DOT testing protocols could care less about how the THC got into the pilot’s system. A positive is a positive—period. Therefore, any positive test, even if the pilot claims it was an unintentional exposure or from CBD, leads to all kinds of horrific legal consequences. It is more likely than not that a pilot who tests positive on a DOT test for THC will lose both medical and pilot certificates. There is then typically a minimum of a one-year wait before that pilot can apply for reinstatement of the certificates.
Why is there such a seemingly harsh punishment? As I mentioned, a positive test is a positive test. The bare minimum definition, under the CFRs as currently written, is that any DOT-positive test is deemed to be, at minimum, “substance abuse.” There is no provision to waive this definition for a pilot who claims, or even might be able to prove, that the ingestion of THC was unintentional.
That pilot would still fall under a special issuance that would require demonstrated ongoing abstinence from all mood-altering substances (marijuana, all other drugs of abuse, and alcohol—even if there is no history of an alcohol use disorder). There would be an extensive set of medical evaluations (a pilot could even be sent to substance rehabilitation treatment if the evaluations so recommended) and the monitoring period would be at least two years, commencing after an initial period of monitored abstinence has convinced the FAA that the pilot meets the applicable special issuance protocols. Hence, the period of time we’re talking about here is clearly well over two years from the DOT-positive test until the pilot has completed the mandated special issuance monitoring period.
Once a medical certificate has been reinstated, then begins the process of regaining any revoked pilot certificates. Overall, this becomes a very stressful, and very expensive, couple of years—all over a THC positive from using a theoretically legal substance. Taking that substance, therefore, sounds somewhat risky to me.
Pilots continue to ask AMEs and the FAA to give sanction to use a product that could, due to its unregulated nature, cause that pilot to test positive for THC. Should that happen, of course, the pilot would be subject to all of the sanctions mentioned above. I don’t think either an AME or anyone at the FAA enjoys the prospect of giving approval to do something that could cost a pilot his or her career. Therefore, neither the FAA nor I ever state that it is simply “OK” to use a CBD product.
Even though CBD products are “supposed” to contain only a very small amount of THC, can we be sure, given that their manufacture is still largely unregulated and unsupervised? Asking if it’s OK to take a CBD product is no different than asking if it’s “OK to take a product that supposedly contains only “a small amount” of cocaine or methamphetamine. How could the FAA or any AME agree to that?
Remember, the ramifications of a DOT-positive test are, for the most part, the same whether the substance in question is THC from a CBD product or methamphetamine, cocaine, heroin, or other illegal drugs.
There is finally some real research taking place to determine the potential efficacy and uses of CBD products. We all know that many U.S. states have “legalized” medical and recreational marijuana. Here, “legalization” simply means that that the state is not enforcing federal law. For now, the federal government has decided not to make a big deal out of the kinds of marijuana activities approved by the individual states. But it is still not truly “legal” by any stretch of the imagination on a federal level.
There are some interesting developments in the use of CBD products. For example, there is now an FDA-approved, legal prescription medication based on cannabidiol that is indicated to treat certain kinds of seizures. So progress is being made, slowly but surely, into bringing some potential health benefits of CBD to the market.
It is unknown what other conditions could be formally researched and/or approved in the future, but the subject is certainly in a great deal of flux. At some point, could CBD (with a THC level greater than 0.3 percent), marijuana, and THC itself no longer fall under the CSA definition of a Schedule 1 drug (no legitimate medical use)? There is no way to predict or anticipate that potential outcome.
What clearly is certain, however, is that for now, and for an indefinite period of time into the future, consider a positive test for any substance that is tested for in the DOT random testing program to be a deal-breaker for pilots.
While it is interesting to consider potential future prospects and developments in the use of CBD products, pilots need to first and foremost protect their careers. Do you want to risk both your pilot and medical certificates by taking a product that is unregulated and could contain enough THC to cause a positive DOT test?