By Bill Current, Founder of the Current Consulting Group
It’s been said that elections have consequences, including unintended consequences that can be harmful, nonetheless.
The Drug Enforcement Administration (DEA), at President Biden’s direction, intends to reclassify marijuana as a Schedule III drug. Currently, and for decades, it has been classified as a Schedule I drug along with cocaine and heroin, among other dangerous drugs.
According to an article on the DEA’s website:
“On Oct. 6, 2022, President Biden asked the Attorney General and the Secretary of Health and Human Services (HHS) to launch a scientific review of how marijuana is scheduled under federal law. After receiving HHS’s recommendations last August, the Attorney General sought the legal advice of the Justice Department’s Office of Legal Counsel (OLC) on questions relevant to this rulemaking. In light of HHS’ medical and scientific determinations, and OLC’s legal advice, the Attorney General exercised his authority under the law to initiate the rulemaking process to transfer marijuana to schedule III.”1
But this statement begs the question: Why? And to what “medical and scientific determinations” and “legal advice” are they referring? If anything, the medicinal value and benefits of marijuana are highly disputable.2
Many states have moved to legalize the use of marijuana for medicinal and so-called recreational use. And this despite the fact that marijuana has remained illegal under federal law — until now. If the Biden Administration has its way, marijuana will be de facto legal. The rescheduling of pot will make it legal for banks to process financial transactions for the cannabis industry and for doctors to legally “prescribe” marijuana rather than simply “recommend” its use for various physical and mental ailments.
Add to all of this the fact that there are no scientific and medical oversights for marijuana at any government level. Unlike other medications, such as pain killers and anti-anxiety pills, which are subject to extremely high standards of oversight by the U.S. Food and Drug Administration (FDA), marijuana is untethered to any regulatory oversight. And the DEA’s proposal to reschedule marijuana as a Schedule III drug does not suggest that the federal government will become the overlord of marijuana (nor would the burgeoning cannabis industry welcome such authority to its freewheeling business environment).
So, where does that leave us? With many unintended consequences that the Biden Administration apparently has not considered. Let me just name one: the drug testing of safety-sensitive workers in the transportation industry, including truck drivers, airplane pilots, bus drivers, train operators, and subway train conductors, among others. That can’t be true, right? Drug testing in the transportation industry has, for more than three decades, been hailed as a great success at deterring drug use, including marijuana and amphetamines, and making transportation safer in the United States. Why would anyone in the government be opposed to maintaining safe travel conditions and requiring drug testing of safety-sensitive transportation workers? Chalk it up as an unintended consequence of the DEA’s proposal to reschedule marijuana. Here’s how:
If marijuana is rescheduled as a Schedule III controlled substance, the Department of Health Human Services (HHS) will no longer have the authority to certify laboratories to test for marijuana. This means the DOT will no longer be allowed to require transportation companies to test for marijuana. Hence, covered workers in the transportation industry (including the person driving the big rig at 75 miles per hour next to you on the freeway or the pilot who’s telling you to remain in your seat with your seat belt fastened because of extreme turbulence) could be high on marijuana because they’ll no longer be screened for it. But couldn’t employers still require their employees to pass drug tests that include marijuana? Maybe, but will they?
The answer to that question turns our attention to state and municipal drug testing laws that have heretofore been trumped by federal drug testing regulations, such as those of the DOT. But if the DOT is no longer authorized to require DOT-covered employers to test for marijuana because HHS can no longer certify labs to test for marijuana, will state laws permit it?
There are at least 18 states that in one way or another defer to federal drug testing regulations to guide local employers in how to conduct drug testing. Some of these laws are mandatory, and others are voluntary. Some are industry- or occupation-specific. Some deal with drug-test panels, cut-off levels, or what type of laboratory certifications are required. If the federal regulations are stripped of any marijuana testing language, these state laws would be directly affected, and employers would be left to confer with their attorneys to determine whether they could or should continue testing for marijuana and, if yes, how. Chaos would be the word of the day.
Consider this: even without DEA rescheduling marijuana, we’re already seeing an erosion in the resolve of employers to test for it. In Current Consulting Group’s (CCG) 2024 Drug Testing Industry Survey, 35% of drug testing providers said between 1% and 5% of their clients have stopped testing for marijuana, 26% said between 6% and 10% have stopped, and a whopping 17% said more than 10% of their clients have dropped marijuana from their test panel.
Most survey participants, 70%, believe this trend of dropping marijuana from drug tests will continue. Further, more than 43% said they do not believe companies that drop marijuana will ever reinstate testing for it.
And it’s not just employers who are going soft on marijuana. In CCG’s survey, when providers were asked if they are advising clients to stop testing for marijuana in California and Washington, two states that have passed laws making traditional urine testing for marijuana more difficult, 14% said yes.
Beyond the unintended consequences of fewer employers acting in the name of workplace safety by testing for marijuana, we’ll certainly see more marijuana users smoking pot on the way to work and during the workday.3 With that we will see a continued increase in drug-related workplace accidents.4 And the overall consequence will be less safe, less productive, less desirable working conditions in all industries — and especially in the transportation industry.
NDASA weighs in
The National Drug and Alcohol Screening Association (NDASA) is working diligently behind the scenes to help the various government agencies involved in, or affected by, the reclassification of marijuana to understand the obvious and also the unintended consequences of such a move. In particular, NDASA is promoting a “safety carve-out” that would protect federal agencies — the DOT in particular — that currently require testing for marijuana.
“It is critical to the safety of the American transportation system that safety-sensitive workers be required to remain marijuana-free while performing their jobs,” said Jo McGuire, Execuive Director of NDASA. “We’re fooling ourselves if we think reclassifying marijuana as a Schedule III drug will not result in more people using marijuana and being impaired at work and elsewhere in society. At the very least, DOT should be allowed to continue requiring covered employers to test for marijuana along with other dangerous, impairing drugs.”
NDASA has led the charge to encourage organizations and companies to submit comments in opposition to the DEA’s Notice of Proposed Rulemaking (NPRM) to reschedule marijuana. Visit NDASA’s website to read the association’s official comments submitted to the U.S. Attorney General.5
Here is one particularly pointed excerpt from NDASA’s comments:
“Rescheduling marijuana to Schedule III would abruptly end DOT-regulated testing for marijuana and would have a profoundly detrimental impact on transportation safety in the United States. This connection between the rescheduling of marijuana and the impact on commercial transportation safety was never discussed in the NPRM. Thus, it is fair to conclude there is a significant and dangerous blindside in this rulemaking. In addition to the DOT-regulated transportation safety-sensitive employees, the air traffic controllers employed by the Federal Aviation Administration (FAA) would no longer be subject to the deterrence and detection ensured by Federal marijuana testing. NDASA is raising these issues to the attention of the Attorney General and the DEA to prevent potentially catastrophic accidents and loss of life as a result of the rescheduling of marijuana.”
Conclusion
And consider this: for the marijuana legalization movement, this has never been about legalizing only marijuana. It has always been about legalizing all illicit, dangerous drugs. Just look at Oregon for an example and that state’s disastrous experiment with decriminalizing heroin, cocaine, fentanyl, and all other drugs. And marijuana can rightfully be crowned the most dangerous of all illicit drugs because it is the most used, the most destructive, and if the Biden Administration has its way, the most legal. Wow! Talk about unintended consequences.
Editor’s Note: For a wealth of timely and instructive information about marijuana, visit the website of Americans Against Legalizing Marijuana (aalm.info).
1Justice Department Submits Proposed Regulation to Reschedule Marijuana. May 16, 2024. https://www.justice.gov/opa/pr/justice-department-submits-proposed-regulation-reschedule-marijuana
2“To date, the FDA has not approved a marketing application for cannabis for the treatment of any disease or condition.” “Caregivers and patients can be confident that FDA-approved drugs have been carefully evaluated for safety, efficacy, and quality, and are monitored by the FDA once they are on the market. However, the use of unapproved cannabis and cannabis-derived products can have unpredictable and unintended consequences, including serious safety risks. Also, there has been no FDA review of data from rigorous clinical trials to support that these unapproved products are safe and efficacious for the various therapeutic uses for which they are being used.” FDA and Cannabis: Research and Drug Approval Process. https://www.fda.gov/news-events/public-health-focus/fda-and-cannabis-research-and-drug-approval-process
3The Prevalence of Substance Abuse in the Workplace. American Addiction Centers March 2023. https://drugabuse.com/addiction/substance-abuse-workplace/
Cannabis Use During the Workday. Hound Labs. April 2023. https://houndlabs.com/2024/02/29/survey-offers-new-insights-about-cannabis-use-at-work/
4Workforce Drug Test Cheating Surged in 2023, Finds Quest Diagnostics Drug Testing Index Analysis of Nearly 10 Million Drug Tests. Quest Diagnostics Drug Testing Index. May 2024. https://newsroom.questdiagnostics.com/2024-05-15-Workforce-Drug-Test-Cheating-Surged-in-2023,-Finds-Quest-Diagnostics-Drug-Testing-Index-Analysis-of-Nearly-10-Million-Drug-Tests
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