Hemp-Oil Urinalysis Acquittal Puts Piss-Testing in a Hard Place

Hemp-Oil Urinalysis Acquittal Puts Piss-Testing in a Hard Place

An Air Force master sergeant's acquittal on urinalysis-based drug charges has caused the drug-testing industry to gird for an anticipated flood of litigation from non-drug users who have wrongfully lost their jobs or been denied employment.

In US v. Gaines, a military case involving a 41-year-old airman at Dover Air Force Base in Delaware, all charges were dropped last December after a toxicologist explained to the jury that the THC found by drug-testers in his urine was attributable to the ordinary hemp-oil dietary supplements, bought at a local grocery store, which he'd been taking regularly for years. According to a report in last July's issue of The Journal of Analytical Toxicology, "A dose consistent with the manufacturer's recommendation of one to four tablespoons per day (15-60 mL) would be sufficient to cause a positive finding for cannabinoid metabolites in a workplace urine drug-testing procedure designed to detect marijuana use." (HighWitness News, Feb. '98.)

The precedent established in the Gaines case, abetted by a growing body of scientific evidence illustrating the forensic inadequacies of commercial drug-testing, has deeply concerned the industry's proponents. To its credit, the leading monthly newsletter directed toward drug-testers has confronted the issue head-on. MRO Alert, published by the American Association of Medical Review Officers in Chapel Hill, NC, has devoted plenty of space in recent issues to acknowledging the knotty scientific and ethical issues posed by drug-testing's questionable reliability. Its target audience of medical review officers--individuals hired by corporations and public agencies to maintain the legal "confidentiality" of their drug-testing programs--have been enjoying a crash course in constitutional law, among other instructive topics.

"It could be argued that federally mandated drug-testing fails the Supreme Court's constitutional test of reasonableness," the MRO Alert cautioned in its January 1998 issue, "if drug-testing procedures cannot distinguish between the use of commercially distributed hemp oil and illegal use of marijuana." Citing the Gaines precedent, it suggested, "Not only is there a prospective problem of prosecuting future urinalysis cases, but there could well be new appeals filed on old cases based on this new defense."

This warning is directed primarily to government agencies and contractors, who are required to follow a modicum of scientific procedure to qualify for "a narrow exception to the Fourth Amendment requirement that a search requires a warrant based on probable cause." (Private employers who consider themselves unburdened by Fourth Amendment constraints may ill-advisedly believe they can use even shoddier drug-testing procedures.)

"It is simply a matter of time," predicted MRO Alert, "before federal drug-testing programs will be legally challenged on this constitutional issue." A well-reasoned challenge, it added, might result in a federal court enjoining the practice entirely, and also "would probably enjoin employers from taking any adverse employment action... when there is no independent cause to suggest illegal marijuana use."

Last year, the federal Department of Transportation ruled that its supervisors could not accept hempseed oil as an explanation of a THC-positive test sample, because it would supposedly not qualify as a "medical" explanation. Since untold numbers of non-drug-users are currently taking regular doses of nutritional hemp oil for its proven content of omega acids, though--and taking it in preference to less easily digestible supplements, with the specific medical intention of maintaining their health--the DoT's administrative ukase may not vanquish basic legal challenges. "There is a reasonable expectation," MRO Alert considers, "that DoT's policy and drug-testing program may be challenged on the basis of THC contamination and the reasonableness of its policy."

Companies might try ordering their employees to avoid certain general health-food items as a condition of employment, of course--but then what about the majority of non-drug-using employees who would be denied access to all these perfectly legitimate articles of commerce? On the other hand, specifically forbidding hemp-oil preparations would just give the game away: "A prevalent concern about giving individuals notice of hemp oil is," the MRO Alert gloomily concludes, "that knowledge becomes their automatic defense."

Last updated: April 27th, 1998