The U.S. Coast Guard filed a Suspension & Revocation proceeding against a mariner for testing positive for marijuana after he used hemp oil spray to relieve knee pain. Even though the Administrative Law Judge believed the mariner’s defense that he did not use marijuana and that the positive test result was from hemp oil use, it still revoked his license for three years based on the Coast Guard's zero tolerance policy.
The mariner was working for Great Lakes Dredge & Dock Company, LLC aboard the DREDGE OHIO when the company’s random drug testing program required him to give a test. The test came back positive for marijuana. Notably, the level of marijuana metabolite detected by the drug test, 19 nanograms, was just above the legal limit (15 nanograms).
The doctor coordinating the drug screen contacted the mariner by phone to give him an opportunity to explain the positive test result. The doctor recorded the phone calls. During the first call, the mariner denied using marijuana but advised he had previously used a CBD product. The mariner testified he bought a spray bottle of hemp oil from the Vitamin Shoppe and applied it to his knee for pain relief the day before he was tested.
The doctor told the mariner that a product containing “pure” CBD would not cause his urine to test positive for marijuana, but recognized that a CBD product containing “impurities” could cause a positive result. The doctor also concluded during a telephone call:
You only have 19 nanograms of marijuana… To be negative it needs to be under 15. So it’s the CBD that most likely caused you to have a positive test.
Notwithstanding the above, the doctor advised a CBD product was not an acceptable reason for testing positive for marijuana and he would have to verify the result as positive.
The U.S. Coast Guard instituted a Suspension & Revocation proceeding against the mariner to revoke his license for the positive result. The mariner denied the charges and the matter proceeded to a Suspension & Revocation hearing.
At trial, the mariner vehemently denied using marijuana and introduced the following documents into evidence to support his defense:
a receipt showing the purchase of “3MG CBD HEMP SPRAY PEPPERMINT,”
four photographs of a bottle labeled “Plus +CBD oil Full Spectrum Hemp Extract,” and
a letter from his doctor recommending the mariner “use CBD oil to help decrease the pain at his bilateral knees.”
The mariner also pointed to testimony of the doctor recognizing “a product marketed as a legal CBD product could contain amounts of THC that could be detected by a drug test” and “the level of marijuana metabolite detected by the [mariner's] drug test, 19 nanograms, was indicative of use of a CBD product.”
The U.S. Coast Guard countered by pointing to a DOT Office of Drug and Alcohol Policy and Compliance Notice and a USCG Marine Safety Advisory which warn that products marketed as CBD products “may contain enough THC to cause a positive drug test result,” and that the “use of hemp or CBD products is not an acceptable excuse for a positive drug test result for THC.”
Here is a link to the DOT Notice: https://www.transportation.gov/sites/dot.gov/files/images/ODAPC%20Medical%20Marijuana%20Notice.pdf
Here is a link to the U.S. Coast Guard Marine Safety Advisory:
The court admitted the DOT Notice into evidence but refused to do so for the USCG Marine Safety Advisory because it determined the Coast Guard did not present a proper basis for official notice for the advisory.
The court found the mariner’s defense and testimony to be persuasive but granted the Coast Guard’s request to revoke the mariner’s license for three years because it was bound by prior Commandant decisions and regulatory requirements of positive drug test cut-off levels.
The court emphasized “it is well-settled that marijuana is considered a ‘dangerous drug’ for purpose of 46 U.S.C. § 7704.” Further, the “changes in state laws regarding marijuana-derivied products have had no effect on federal drug laws, or the Coast Guard’s enforcement of federal drug testing requirements.” The court leaned on precedent finding that “even if a mariner claims that use of CBD product, and not illicit drugs, caused a positive drug test result, such use would provide no defense to a positive drug test result.”
While granting the Coast Guard's request to revoke the mariner's license for three years, the court suggested the Coast Guard could consider modifying the penalty when a mariner demonstrates CBD as the likely basis for a drug test result:
Respondent has raised concerns arising from the use of CBD, which is not prohibited by law and has been advertised for use in pain relief. Since this appears to be a recurring issue in S&R proceedings, the Coast Guard could consider some modification of the current cure standard to a lesser time period, with additional testing requirements, if a mariner can demonstrate use of CBD as the likely basis for a drug test result.
The citation for this case is United States Coast Guard v. Nathaniel Tyrone Jennings, Docket Number 2020-0477 (June 2, 2022). Here is a link to the decision:
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