State law, federal policy clash on CBD oil

Cannabidiol oil, or CBD oil, derived from industrial hemp is sold freely at area health stores and vape shops.

But if workers at Oak Ridge’s U.S. Department of Energy facilities and the Y-12 National Security Complex use it, they could be treated like users of heroin or LSD.

That’s because federal law still classifies marijuana as a Schedule I drug — and though hemp-derived CBD oil has minimal amounts of the high-producing chemical THC, standard drug tests can’t tell the difference between hemp products and marijuana.

The policy applies to direct federal employees and contractors, a total of nearly 10,000 people, according to DOE and Y-12 representatives. The rationale stems from a 2015 Office of Personnel Management memo on “marijuana use” — which doesn’t address CBD oil directly — and before that to a presidential executive order dating from 1986, at the height of the War on Drugs.

Just more than half those affected work at Y-12. The policy applies to all direct federal employees and contractors at Y-12, according to Steven Wyatt, spokesman for the National Nuclear Security Administration Production Office, which

oversees the Y-12 National Security Complex and the Pantex company’s sister plant in Texas.

There are 74 federal employees and 4,975 who work for Consolidated Nuclear Security, the corporate partnership that manages Y-12, he said via email.

The Y-12 plant’s electronic news service recently reminded employees that CBD oil is still illegal under federal law, Wyatt said. They’re also informed during annual security training.

“Y-12 and other Department of Energy and National Nuclear Security Administration facilities routinely require drug tests that include scans for marijuana products,” he said. “The use of CBD oil can result in a positive urine drug screen test.”

Federal employees can be tested as job applicants, under “reasonable suspicion,” after an accident, and through “voluntary testing and random testing,” Wyatt said. DOE contractor employees are tested on hiring.

Wyatt said he couldn’t discuss how often tests are given.

“A positive drug test can lead to suspension of a security clearance which restricts access to classified information and facilities,” he said. So can possession of banned substances, such as CBD oil.

Wyatt would not, however, say how many Y-12 employees have been caught using CBD oil or what the consequences were.

“Violations of the drug testing policy have occurred, but we are not at liberty to discuss the specifics,” he said.

AMBIGUOUS ORIGINS

Cannabidiol oil can be made from marijuana plants — and that’s still illegal — but Tennessee law declares CBD oil legal if it’s made from industrial hemp.

The problem is telling the difference.

In a February raid dubbed “Operation Candy Crush,” Rutherford County deputies closed about two dozen convenience stores and charged owners for selling gummies made with CBD oil — but prosecutors dropped all charges, on the grounds that Tennessee Bureau of Investigation tests couldn’t tell if the oil came from marijuana plants or industrial hemp.

After Candy Crush, TBI said the burden of proving CBD oil is not from hemp is on the state, not the accused.

“TBI Forensic Scientists objectively identify compounds that are present in evidence submitted to our lab and report out the schedule as indicated in the Tennessee Code Annotated to the submitting agency,” said Leslie Earhart, Knoxville-area public information officer for TBI. “Additionally, our laboratory analysis can only determine relevant compounds, not the particular origin of those substances.

“We make no determination as to the legality of these compounds. Instead, the District Attorney General determines whether the law has been broken, based upon the circumstances of each case.”

Earhart provided a legal description of industrial hemp and pointed to the Tennessee Department of Agriculture as the regulatory agency. On that agency’s web page, it cites a 2014 law which “removes industrial hemp from the definition of marijuana in the criminal code.”

NEW PRODUCT, OLD RULES

But federal law still classifies CBD oil of any origin as marijuana, and thus as a Schedule I controlled substance such as heroin and LSD. But many states have loosened penalties — including Tennessee, which downgraded “Marijuana, THC and synthetic equivalents” to Schedule VI. Distribution of less than 1/2 oz. is a misdemeanor; only growing, transporting and selling larger amounts is a felony here.

Spokespeople for Y-12, DOE, the U.S. Attorney’s office and the U.S. Office of Personnel Management all pointed back to a May 2015 memo from then-OPM Director Katherine Archuleta, which took note of several states decriminalizing marijuana for medical or recreational use.

“These changes to state law have raised questions about whether Federal employees in these jurisdictions may use marijuana as provided for in state law,” she wrote. “Federal law on marijuana remains unchanged.”

As such, federal employees are prohibited from using anything classified as “marijuana,” on or off duty.

Archuleta cited the 1986 executive order, which says employing a marijuana user “might not promote the efficiency or protect the integrity of the service. However, the individual’s conduct must be evaluated on a case-by-case basis.”

DiAnn Fields, DOE spokeswoman at the Oak Ridge facility’s Integrated Support Center, indicated that can still mean firing.

Under the 1986 executive order, “persons who use illegal drugs are not suitable for Federal employment,” Fields said.

EASY ACCESS, GROWING MARKET

But if employees at DOE and Y-12 want to find CBD oil, they don’t have to look far. It’s sold in health food stores, vape shops and through multiple websites. Online prices range from around $20 for a small bottle to more than $100 for larger amounts.

Eddie’s Health Shoppe in Suburban Plaza at 8025 Kingston Pike carries several brands of CBD oil and CBD-infused products, all derived from industrial hemp: Charlotte’s Web, CV Sciences, Mary’s Nutritional.

The store has carried CBD oil products for about a year, and business is brisk, General Manager Mike Wright said. Customers might snap up 250 bottles of Charlotte’s Web in two weeks, and the market is growing, he said.

“I’ve never seen anything like it,” Wright said. “What we’re starting to see now, since this is such a big item, is companies like Terry Naturally.”

That’s a 36-year-old vitamin and supplement company which has added a mixture of hemp oil and curcumin, marketed as an anti-inflammatory. Terry Naturally’s website says the company does not “make claims regarding CBD,” but notes that CBD is one of many compounds in hemp oil.

CBD oil is also available in tea and in products for dogs, intended to treat arthritis, Wright said.

Eddie’s Health Shoppe gets lots of referrals from doctors, urging patients with arthritis, cancer-related nausea or sleep problems to try CBD oil, he said.

The CBD products are kept behind the checkout counter — but that’s because they’re expensive, not because their sale is restricted, Wright said. They’re available to anyone, he confirmed.

UNCERTAIN ACTION

Beyond Y-12, nearly 5,000 more employees and contractors at various DOE offices in Oak Ridge fall under the same rules. Fields and Claire Sinclair, spokeswoman for the DOE Office of Science there, echoed Wyatt on policy, testing standards and consequences — quoting many of the same verbatim.

About 30 federal employees and 4,500 contractors are covered at the DOE science Site Office, Sinclair said; but again, the potential scope of the issue isn’t being made public.

“Disciplinary actions are confidential; therefore, we are not at liberty to discuss such actions,” she said.

Another 260 federal employees are under the same rules at the DOE Integrated Support Center, Fields said. They’re told of the policy upon hiring, again during annual security training and by internal agency email, she said.

Nor are checks limited to urine tests, Fields said.

“All personnel entering government facilities are subject to random administrative inspections,” she said.

Spokespeople for Y-12 and DOE didn’t answer whether cases involving CBD oil had been turned over to law enforcement. It doesn’t appear, though, that any have been referred to state or local authorities.

Anderson County District Attorney Dave Clark said he hasn’t heard anything regarding CBD oil — no instruction on its legality, no cases involving it, no charges for possession or use.

He hasn’t heard anything from Y-12 about it either, he said. Clark said he hasn’t even gotten questions about CBD oil from law enforcement or the general public.

“We have not come across it at all in Anderson County,” Clark said.

That’s perhaps not surprising, given that hemp-derived CBD oil is legal under state law. But federal statutes still call it illegal.

Sharry Dedman-Beard, public information officer for the U.S. Attorney’s Office, Eastern District of Tennessee, wouldn’t directly address whether the U.S. Attorney’s office is pursuing cases against users of CBD oil, from Y-12 or elsewhere.

“Just as with any potential violation of federal law referred to our office from an investigating agency, the U.S. Attorney’s office weighs all relevant considerations before deciding whether or not to prosecute offenses,” she said.