We have written a bit in the past year about the emerging issue of CBD oil use. That’s not because we enjoy repeating ourselves. It’s because this issue is popping up a lot in security clearance cases. 

Positive THC test Assumes the Worst for Clearance Holders

Despite the passage of the 2018 Farm Bill, which legalized the manufacture and use of CBD oil with 0.3% or less THC concentration, most federal agencies remain highly suspicious of CBD oil. Worse still, they have almost uniformly adopted a harsh view of clearance holders who test positive for THC on a drug test and claim to have only used CBD oil. It sounds something like this:

“You’re a marijuana user – and a liar – until and unless you can prove otherwise.” 

Low THC in CBD Oil Can Still Lead to Positive Test

The government’s theory is that use of legal CBD oil could not produce a positive test result for THC because the concentration of THC contained in the product is too low. As we’ve learned, however, that is not the case. In fact, we’ve been told by an expert witness scientist in one of our own CBD oil cases that heightened THC can show up in a drug test as a result of several different variables. These include residual THC that remains in the body after use of the CBD oil, causing a compounding effect. In other words, if one uses CBD oil multiple times, the body may present as having consumed marijuana (with a higher THC concentration) once versus multiple instances of CBD oil use.

New Test Traces THC from CBD Oil

Even more concerning is the fact that the traditional scientific process of analysis and derivatization of urine samples apparently causes the appearance of additional trace amounts of THC when CBD oil is present in the body. That can result in artificially heightened THC content in the blood, potentially putting the individual over the 0.3% threshold. 

Fortunately, there is some good news. At least one drug testing company has had available since September 2019 a new test designed specifically for those who admit to CBD oil use. The test, developed and made available by one of the largest drug-testing companies, LabCorp, notes that its purpose is specifically “to assist in distinguishing whether a positive urine THC test is exclusively the result of CBD use.” 

Clearance Holders Need to Ask for the Special Test

The problem is now only that many federal agencies are unaware that this test exists and many security clearance holders using legal CBD and ordered to undertake a pre-employment or random drug test don’t know to ask for it. If you’ve used legal CBD but not marijuana, be sure to emphatically demand the new LabCorp test when providing your specimen for analysis. Document those demands in writing (e.g. email) and be sure to keep a copy in a safe place for future use, as necessary.

A bit of knowledge can be the difference between keeping your security clearance and losing it under false pretenses.

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation. 

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Sean M. Bigley retired from the practice of law in 2023, after a decade representing clients in the security clearance process. He was previously an investigator for the Defense Counterintelligence and Security Agency (then-U.S. Office of Personnel Management) and served from 2020-2024 as a presidentially-appointed member of the National Security Education Board. For security clearance assistance, readers may wish to consider Attorney John Berry, who is available to advise and represent clients in all phases of the security clearance process, including pre-application counseling, denials, revocations, and appeals. Mr. Berry can be found at https://www.berrylegal.com/.