In June of 2018, Mark Pennington received troubling news from his ex-girlfriend, with whom he shared custody of their two-year-old son. She had taken a hair follicle from the boy, she mentioned, and had it analyzed at a lab. A drug test had returned optimistic for THC, the intoxicating compound in marijuana evidently their son had been exposed to it, presumably in Mr. Pennington’s presence. He was told that, from then on, he would be permitted to see the kid only when a week, and beneath supervision.
“I was mortified,” Mr. Pennington recalled not too long ago. “My jaw hit the floor. I just knew from the bottom of my heart I hadn’t gotten any THC in my son’s program.”
Having said that, Mr. Pennington had been giving his son with honey infused with cannabidiol, or CBD, a nonintoxicating compound that, like THC, is identified in varying amounts in the plant recognized as cannabis. THC is federally illegal, and till not too long ago so was all cannabis.
But final December, the Farm Bill legalized hemp — cannabis that consists of much less than .three % THC. With that, CBD became legal. It can now be identified at shops across the nation, in every thing from tinctures and massage oils to coffee and makeup. Mr. Pennington, who lives in Colorado, exactly where expanding hemp for CBD has been legal considering that 2014, worked for Colorado Hemp Honey, a corporation that sells CBD-infused raw honey across the nation.
Mr. Pennington was despondent about possibly losing custody of his kid, till he spoke with Frank Conrad, the chief technologies officer and lab director at Colorado Green Lab, a scientific consultant to the cannabis market. Mr. Conrad directed him to a tiny-recognized study published in 2012 in the Journal of Analytical Toxicology that showed that a typical forensic drug testing process could conveniently error the presence of CBD for THC. In brief, the drug testing lab could have erred it was completely probable that the CBD Mr. Pennington had provided his kid had triggered the drug test to make a false optimistic for THC.
Two chemists with Cascade Chemistry, a private chemical-analysis corporation in Eugene, Oregon, independently reviewed the study for The Occasions and confirmed the validity of the possible drug testing difficulty.
With Mr. Conrad as an professional witness, Mr. Pennington won equal custody. Now, on behalf of his son, he plans to sue the lab that did the drug test, to raise awareness of the problematic testing process, which could have broad implications for typical Americans as CBD becomes mainstream.
“I cannot even estimate how numerous people today this is going to screw more than,” mentioned Mr. Conrad, who has worked on a handful of situations related to Mr. Pennington’s. (He is not operating with Mr. Pennington on the lawsuit against the lab.) In a single case Mr. Conrad consulted on, a couple in Florida was charged with marijuana possession immediately after a CBD-infused gummy bear tested optimistic for THC. One more client was arrested for violating his parole immediately after testing optimistic for THC, when he claimed he had only utilised CBD.
In each court case in which Mr. Conrad has explained the difficulty with this distinct drug testing process, prosecutors have dropped the charges. “Anyone who’s on probation receiving a random urine test — if this occurs to them and they’re taking CBD oil, they’re going back to jail,” Mr. Conrad mentioned.
Bruce Houlihan, director of the Orange County, Calif., crime lab and chair of the emerging drugs and opioids committee for the American Society of Crime Lab Directors, expressed concern. “If any labs are working with this process, they’ll have to be cautious,” Mr. Houlihan mentioned. He added that there was no way to estimate how numerous drug testing labs could possibly be accidentally mistaking CBD for THC, due to the fact forensic labs commonly establish their methodology in property.
It is also tough to estimate how numerous people today in a year have suffered damaging consequences, such as the loss of a job or parental rights, immediately after testing optimistic for THC, due to the fact most drug testing information is private. Even information that is public can be tough to parse. For instance, in numerous locales, official statistics about “drugged driving” do not distinguish among drivers who test optimistic for THC and these who test optimistic for other drugs, such as cocaine or methamphetamine.
Nonetheless, a drug test that identifies CBD as THC could have really serious consequences. Even in states that have legalized marijuana, it remains legal for employers, kid protective solutions, public housing authorities and other entities to test for THC. And in a survey performed earlier this year by the investment bank Cowen, 7 % of adults in the U.S. — 17 million people today — reported working with CBD.
The drug testing process in query requires a typical chemical evaluation device named a gas-chromatography mass-spectrometry, or GC-MS, machine. Most such devices call for the drug testing lab to add a chemical to a sample in order to determine trace amounts of illicit compounds, in a approach named derivatization. Labs can carry out derivatization working with a selection of chemical agents, but a single of the most typical is named trifluoroacetic anhydride, or TFAA.
According to the 2012 journal report, TFAA when utilised by a GC-MS machine was unable to discern among CBD and THC. If a particular person who utilised only CBD had been provided a drug test that employed this device, process and chemical, the final results would falsely report the presence of THC.
Several labs have upgraded from GC-MS evaluation to a additional precise method named higher-functionality liquid chromatography, Mr. Houlihan mentioned. But tests working with GC-MS are nonetheless typical, he mentioned, and numerous of these could be working with TFAA.
“Most labs working with GC-MS toxicology, you have to derivatize,” Mr. Houlihan mentioned. “TFAA is a typical derivatizing agent.”
Barry Sample, the senior director of science and technologies at Quest Diagnostics, the greatest purveyor of drug tests in the nation, mentioned he was familiar with the difficulty outlined in the 2012 paper, but mentioned Quest Diagnostics did not use that methodology. “We use a distinct analytical process,” Dr. Sample mentioned.
Having said that, a lady who was fired from her job final year following a urine drug test from Quest Diagnostics has claimed that a CBD solution triggered her to test optimistic for THC. For the reason that she is in ongoing legal proceedings with her former employer, she asked to be referred to only by her middle name, Elizabeth.
Elizabeth had been taking the CBD solution for a couple of weeks when she went in for a scheduled drug test. The corporation that developed the solution is primarily based in Colorado and appeared to be genuine, she mentioned, so she was shocked when she failed the drug test. “They had been respected,” she mentioned. “They had their lab final results on their web page.”
Elizabeth has been in touch with Mr. Conrad, but he is not serving as a witness in her case.
CBD solutions sold outdoors of state-licensed marijuana dispensaries are not but regulated. As a outcome, numerous solutions that claim to include CBD in truth do not, or they could include additional than the legal limit of THC, according to testing completed by the Meals and Drug Administration. This could bring about some CBD customers to test optimistic for THC, and adds to the confusion surrounding THC testing commonly. Dr. Sample mentioned that this was most most likely the difficulty with the CBD solution Elizabeth had been working with, and most likely why her Quest drug test showed that she had utilised THC. But Elizabeth insisted that the CBD solution she bought did not get her higher and did not have any THC.
“I didn’t break any guidelines, so I need to not be losing my job,” she mentioned, adding that she has struggled considering that her termination. “I’m nowhere close to generating the quantity of cash I was prior to, and I’m not actually operating in my field, either.”
False positives in drug tests are just a single of numerous difficulties that have arisen as law enforcement authorities try to catch up with the quickly shifting laws about the cannabis market.
“Prior to opening up this entire market, there was actually no analysis completed on these compounds, due to the fact it was illegal to do the analysis,” mentioned Rodger Voelker, an analytical chemist in Oregon who helped create the state’s regulations for the forms and amounts of pesticides that can be applied to cannabis crops, as effectively as how to test for their presence in customer marijuana solutions. “These compounds have been about for a lengthy time, but people today did not know considerably about the chemistries. Regulatory agencies are the slowest to move. It is often reactionary.”
For instance, there is no precise test or threshold to measure intoxication from cannabis the ideal accessible tests can only show no matter if an person has utilised marijuana inside the final couple of days. This tends to make it almost not possible to establish no matter if a particular person is driving even though beneath the influence of THC.
“As the laws alter and as policies alter, we’re getting to adapt our testing to preserve up,” mentioned Matthew Gamette, former president of the American Society of Crime Lab Directors and director of forensic solutions for the Idaho State Police. “That requires sources.”
Mr. Gamette has skilled the challenge firsthand. In early January, an Idaho state trooper seized almost 7,000 pounds of cannabis from a truck, assuming it was marijuana. But the supply of the cannabis, a corporation primarily based in Colorado, insisted the plants had been legal hemp, wealthy in CBD but not in THC.
The corporation sued the Idaho State Police, and the state spent nearly a quarter-million dollars on new instrumentation to figure out how considerably THC the plants basically contained. The shipment remains in quarantine as the case moves by way of the courts.
“Even the states exactly where it is legal for recreational use, like Colorado, are actually struggling with this, due to the fact they’re attempting to create the solutions, they’re attempting to get up to speed on what they need to have to be capable to do to comply with their laws,” Mr. Gamette mentioned.
Back in Colorado, Mr. Pennington is also eager for law enforcement to greater have an understanding of the science behind cannabis laws. Even though he is grateful to have won his custody case, he is determined to use his son’s lawsuit against the drug testing lab to make certain no a single else experiences what he did.
“This matters to people today in the military,” Mr. Pennington mentioned. “This matters to people today who could possibly shed their jobs. This matters to people today who could possibly shed their youngsters. This matters to people today who could possibly have to go back to jail. That is the point of the lawsuit, stopping this type of testing. It is unethical, with hemp in the marketplace.”