The Federal Register published draft rules on August 15. These guidelines guide medical examiners (MEs), who perform physical examinations on commercial drivers and are responsible for certifying them for the U.S. Department of Transportation.

Called the “Qualifications of Drivers: Medical Examiner’s Handbook and Medical Advisory Criteria Proposed Regulatory Guidance,” these draft rules warn MEs of CBD consumption in their patients, and explain that it could still cause some drivers to fail their exams. Federal Motor Carrier Safety Administration handbook states that drivers can use CBD because it’s federally legal.

The DOT certification lasts for two years, but if drivers use cannabis, they still cannot be qualified, according to the draft’s section called “Use of Scheduled Drugs or Substances.” “A driver who uses marijuana cannot be physically qualified even if marijuana is legal in the State where the driver resides for recreational, medicinal, or religious use,” the rules state.

In its current form, the draft rules caution MEs that although CBD is legal across the country, the Food and Drug Administration (FDA) doesn’t regulate all of the products, and it can’t be guaranteed that a product’s labels do not incorrectly list the amount of CBD, or the accuracy of THC. “The United States Food and Drug Administration (FDA) does not currently determine or certify the levels of THC in products that contain cannabidiol (CBD), so there is no Federal oversight to ensure that the labels on CBD products that claim to contain less than 0.3% by dry weight of THC are accurate. Therefore, drivers who use these products are doing so at their own risk.”

The rules direct MEs to how to perform the CBD-based examination. “The Agency encourages MEs to take a comprehensive approach to medical certification and to consider any additional relevant health information or evaluations that may objectively support the medical certification decision. MEs may request that drivers obtain and provide the results of a non-DOT drug test during the medical certification process.”

In 2021, the FMCSA issued draft rules that only briefly addressed CBD. “The Food and Drug Administration does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate. Therefore, drivers that use these products are doing so at their own risk.” There was no mention of CBD in the 2020 draft rules, but it did state that cannabis was not allowed.

DOT issued a newsletter in July reminding motorists that marijuana use is illegal and that there are unregulated CBD products available that may contain higher than the THC legal limit. “Recently, some states and local governments have passed legislation prohibiting employers from testing for marijuana,” the newsletter states. “[Federal Transit Administration]The DOT regulates testing programs and reminds employers that local and state legislative efforts have no effect on their businesses. Marijuana is still a drug listed in Schedule I of the Controlled Substances Act.”

A chart in the newsletter shows the numbers of drug tests that have been performed on return to duty (RTD), as well as the percentage of FTA-covered employers who are performing RTD drugs tests. One of the potentially telling statistics is the increase in both the number of Return-to-Duty tests conducted and the number of FTA-covered employers performing this type of test,” the newsletter states. “This data indicates a trend toward a ‘second-chance’ policy versus a ‘zero tolerance’/termination policy following a DOT drug violation.” In 2021, there were 892 RTD drug tests, with 236 drug tests by employers who are FTA covered.

Rep. Earl Blumenauer wrote to Pete Buttigieg in May, complaining about how the DOT cannabis regulations are causing lost jobs. “The federal government should be making it easier for already-qualified drivers to stay in the profession, not forcing them away. Outmoded and unfair federal drug policies are out of step with reality and directly contribute to the trucking shortage crisis,” Blumenauer wrote. “Too many of the 2.8 million Americans who hold commercial driver licenses are not working because of past cannabis tests and the difficulty they face re-qualifying for duty. Supply chains will be unblocked faster and more effectively if these qualified and trained drivers are able to get back on the roads. I am very interested in the steps your department is taking to ensure these qualified drivers have opportunities to return to work, regardless of their past cannabis use.”