Published: May 28, 2019
By: Frederick B. Goldsmith
Mariners — just like everyone else with sore muscles and joints — are using CBD oil or ointment to manage their aches and pains. The problem is CBD oil can contain, even in small amounts, THC, or tetrahydrocannabinol, the active ingredient in marijuana. And when a mariner takes a random or post-accident drug test, typically via urinalysis, this can lead to a positive drug test for marijuana metabolites. As most mariners know, a positive drug test can lead to termination of employment, mandatory reporting of the positive test result to the U.S. Coast Guard, and initiation of license suspension and revocation (“S&R”) proceedings by the Coast Guard.
The Coast Guard considers marijuana a “dangerous drug.” In a 2018 decision, a Coast Guard administrative law judge, or “ALJ,” denied the appeal of a ship pilot who was the subject of a license suspension and revocation proceeding following his failure of a random urinalysis drug test which was positive for marijuana / THC metabolites. The mariner’s defense was he was a highly-experienced and well-regarded pilot with an “unblemished safety record” who had never before failed a drug test and had only used CBD ointment topically — he had not ingested it — to treat chronic knee pain. The CBD ointment did not require a doctor’s prescription. The salesperson at the legal marijuana store in Colorado told the mariner his use of CBD ointment would not have any psychotropic effects nor cause a failed drug test. The CBD ointment tube, however, included warnings stating the product is “infused with marijuana” and had “intoxicating effects.” There were also warnings not to “drive a motor vehicle or operate heavy machinery.” The mariner also testified he admitted he knew the THC ointment was a marijuana-based product that contained THC.
Testing of the CBD oil in question revealed it did contain THC, in an undetermined concentration. The ALJ found “the positive drug test was a result of the mariner using the CBD ointment.” The ALJ also found that the mariner’s seemingly innocent use of the CBD oil was not excusable under applicable law and regulation:
“Just because Respondent did not smoke or ingest marijuana recreationally or intend to gain an intoxicating affect when taking the CBD ointment, does not mean he did not run afoul of DOT drug testing regulations. Respondent argues the CBD ointment is not a dangerous drug. I disagree; the CBD ointment is clearly a dangerous drug prohibited by DOT regulations.”
Accordingly, the ALJ, deeming himself bound by applicable law and regulation, found the mariner a “user of dangerous drugs” and ordered his merchant mariner credential be revoked and surrendered to the Coast Guard. The ALJ also stayed the revocation process, though, finding the mariner was actively engaged in the Coast Guard’s “cure” process, including meeting with a Substance Abuse Professional, taking substance abuse classes, and submitting himself to 12 random, unannounced follow-up drug tests over the course of a year. The ALJ was to reconvene the proceedings to see if the mariner had fully complied with the “cure” process and thus if he was then entitled to get his license back.