More than just CBD…. Pilots and Safety Sensitive Personnel Unwittingly Risking Their Careers

“Designed to support those with demanding lifestyles”

 “Our premium hemp extract is designed to help: Support a sense of calm for focus; Recovery from exercise-induced inflammation; Manage everyday stresses; and Maintain healthy sleep cycles”

 Sounds great, doesn’t it?

 Not if you ask two of my clients.  In the past two months alone, we have represented two aviation professionals, both with otherwise exemplary records (one a 20,000 hour plus Airline Transport Pilot) who had the misfortune of testing positive for marijuana metabolites on U.S. Department of Transportation (DOT)/Federal Aviation Administration (FAA)-mandated drug tests.  Neither one of them used or uses marijuana or any other illicit drug.  Each of them, in the course of their respective careers, had submitted to numerous DOT/FAA drug tests and had never tested positive, fully aware of the fact that drug use has no place in aviation.

 How did they test positive?

 In the U.S. and in many other countries, CBD (cannabidiol) products can be legally purchased from brick-and-mortar retailers or online.  These products are generally advertised as hemp[1]-derived (as opposed to being marijuana-derived)  and either THC-free or containing less than 0.3% THC.[2]  Client A used two products for pre-arthritic hand pain, one advertised as containing 0% THC and the other less than 0.3%.  Client B, an avid skier, used similar products (but from a different manufacturer) for knee pain and swelling.  Neither of our clients used the products to get “high” and neither of them experienced a “high” after using these products.

 The FAA response:

 A positive drug test result always precipitates an enforcement investigation by the FAA—first a letter of investigation (LOI) from the FAA’s Drug Abatement Division, and ultimately an emergency certificate action revoking certificates.  Both pilots received LOI’s, to which we responded, setting forth full explanations as to how the positive test result likely occurred—innocent ingestion of legal products represented to have hemp-derived THC in less than threshold amounts for pain management. 

 Unfortunately, from our past experience, it really doesn’t matter what you say in response to the LOI.  Regardless of how innocent or inadvertent the ingestion may have been, and regardless of other mitigating or extenuating circumstances that may have been present, the Drug Abatement Division almost always forwards the files to the FAA Chief Counsel’s Office for initiation of enforcement action--and that enforcement action is the FAA’s ultimate Doomsday Machine: Emergency Order of Revocation revoking all airman and medical certificates held by the individual.  While the FAA’s Emergency Orders are appealable to the National Transportation Safety Board (NTSB), as emergency orders, they are immediately effective, even if the appeal is taken.  There is no stay pending the appeal.  The result:  immediate loss of job and income.

 Luckily, we were able to negotiate a settlement in Client A’s case after the FAA issued its Emergency Order and prior to the hearing before the NTSB Administrative Law Judge, securing the return of Client A’s airman certificates, but not his medical.  However, the FAA’s willingness to return the airman certificates was to a great extent based upon the fact that Client A tested positive on a preemployment test and was not operating an aircraft with the substance in his system.  It is highly likely that if he had been operating an aircraft with the CBD/THC in his system, the FAA would probably not have agreed to return his airman certificates.[3]  And while the FAA allowed him to immediately reapply for a new medical certificate, this is far more than a perfunctory exercise, as can be seen below. 

 Client B’s case remains in “limbo” as we are awaiting the eventual issuance of the FAA emergency order.

Applying for a new airman medical certificate after a positive test result:

 The FAA (in Federal Aviation Regulation [“FAR”] Part 67) defines “substance abuse”  to include:

 “A verified positive drug test result…or a refusal to submit to a drug or alcohol test required by the U.S. Department of Transportation or an agency of the U.S. Department of Transportation…”(within the preceding 2 years)

 (14 C.F.R. Secs. 67.107[b][2]; 67.207[b][2] and 67.307[b][2]).

 This definition is at odds with the American Psychiatric Association’s DSM-5 criteria for substance abuse and the U.S. National Institute of Health’s and the World Health Organization’s definitions, under which one positive test result would not meet the definition of substance abuse.  In essence, the regulation is not based on science.

 “Substance abuse”, as defined by FAR Part 67 absolutely and unequivocally disqualifies eligibility for airman medical certification.  While the FAA may grant a Special Issuance, this is purely discretionary on the part of the FAA and is not subject to review or challenge.  Moreover, to be considered for a Special Issuance, an airman who may have tested positive will have to do the following, at a minimum:

             -undergo a substance abuse evaluation;

            -retain a HIMS-qualified Aviation Medical Examiner to serve as his/her medical sponsor;

            -submit to random drug testing for a minimum of one year;

-agree to complete and total future abstinence from drugs and alcohol and

            -be examined by a HIMS-qualified psychologist and/or psychiatrist,

 all of which takes substantial time, effort, money and other resources.  Moreover, any future medical condition that may arise in the future will likely result in the withdrawal of the Authorization for Special Issuance.

 In summary:

 While it may be technically legal for pilots and aviation professionals to use CBD products, they do so at great risk to their certificates and careers. Due to a lack of governmental standards for production, testing and marketing, pilots and other aviation professionals run the risk of ingesting CBD that contains levels sufficiently high to produce a positive test result.  In the FAA’s eyes, innocent ingestion is no defense.  In short, don’t run this risk.  It’s just not worth it.  And more than that, don’t even think of carrying these products on an aircraft as the carriage of products exceeding 0.3% THC may also be in violation of applicable aviation regulations and criminal statutes.

FOOTNOTES:

[1] Cannabis is a family of plants.  Hemp and marijuana at two different species in that family.  They differ in their concentration of THC (tetrahydrocannabinol) the compound that induces psychoactive effects—i.e., creates the “high”.  Under the U.S. Farm Bill (2018) hemp was removed from the definition of marijuana in Section 102(16) of the Controlled Substances Act (21 U.S.C. Section 802 [16]) and in listing THC as a controlled substance, it creates an exception for hemp-derived THC (21 U.S.C. Section 812[c]).

 [2] Warning:  Commercially available CBD is not regulated and may contain more than more THC than is advertised.  These levels could be high enough to create a positive test result.  In fact, in the case of Client A, one product was subsequently tested at our behest at an independent laboratory which found that the THC levels were 0.9%, rendering the product illegal under U.S. law.

[3] Hence, the enforcement result is usually far worse when an aviation professional tests positive on a random drug test as he/she was presumably on duty at the time of the test and thus performing safety sensitive responsibilities with the substance in his/her system.  The FAR’s do not require that someone be impaired, only that the substance be in his/her system

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AVIALEX LAW GROUP, LLP

851 Mariners Island Boulevard, Suite 300

San Mateo, California 94404

Telephone:  1-415-421-2500

FAX: 1-415-609-6070

Email:  law@avialex.com

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