Clearance holders pushing the envelope on marijuana use has been a consistent theme in security clearance denial and revocation cases for years now. First came state legalization efforts for medicinal use. Attempts to use medical marijuana cards quickly followed, but those were roundly shot down by security officials.
Next came state recreational legalization, followed by applicant claims not to understand the distinction between state and federal law. I saw mixed success with that defense in the earlier years of my law practice, but by the time I retired it often did more damage to the clearance-holder’s credibility than it mitigated the drug use.
Problems Following the Farm Bill
In 2018, the Agricultural Improvement Act (also known as the “Farm Bill”) federally legalized CBD products containing 0.3% or less THC by dry weight. This led to a flood of clearance holders using purportedly federally-legal products only to learn that the products were often mislabeled (they aren’t FDA-regulated) and/or could accumulate in the blood stream to produce a positive drug test for THC. The problems became so common-place, that DoD and the Coast Guard eventually banned service-members from using any CBD products – even those advertised as federally legal. Other agencies put the onus on an individual who tests positive for THC to prove they weren’t using weed – a very difficult task.
Delta-8 THC – The Latest Marijuana Development
We’ve written extensively here at ClearanceJobs about all of these developments as they happened. But, as it turns out, there are still plenty of enterprising clearance holders out there trying to thread the needle. The newly emerging development? Delta-8 THC.
Delta-8 THC is one of hundreds of chemical compounds found in the cannabis plant. When people talk about “marijuana,” they’re usually referring to the primary psychoactive compound, delta-9 THC. Delta-8 THC is also psychoactive, but a loophole in the 2018 Farm Bill left it apparently unregulated, causing enormous confusion. Exacerbating the confusion is a pair of contradictory legal opinions over the past year: one from a federal court ruling that delta-8 THC is federally legal under existing law, and another from the DEA claiming the exact opposite.
The marijuana industry has taken full advantage of that confusion, quickly moving to market a wide variety of delta-8 “edibles” advertised as federally legal. Ironically, it has been the states – at least 14 so far – filling the federal legal void by banning delta-8 substances.
So, where does this all leave clearance holders? Much like CBD products, I wouldn’t recommend that any clearance holder touch delta-8 THC products with a 30-foot pole. Is there an argument to be made that they’re currently legal? Perhaps. But does the government have an argument that using a psychoactive substance still raises questions about the individual’s judgement and reliability? Absolutely.
I’d liken the issue to another topic I wrote about years ago: so-called “Poppers.” They also appear to be federally legal, but they aren’t used for their intended purpose when inhaled, hence their cagey marketing. Federal agencies were aggressive about pushing cases under Guideline “E” (Personal Conduct) and Guideline “H” (Drug Involvement), even when conceding that the issue failed to meet the criteria for Guideline “J” (Criminal Conduct). I suspect the same will be true with delta-8 THC.
This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied. Laws and government policies are subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation.
