This country’s relationship with cannabis is a complicated one, and as is often the case in complicated matters, words matter. Marijuana and hemp are different strains of the Cannabis sativa L plant. So, “cannabis” is a scientific term, not a legal one.
Although the Controlled Substances Act historically made no distinction between marijuana and hemp, in 2018 the federal government defined “hemp” as any part of the Cannabis sativa L plant, including all derivatives and extracts such as cannabidiol (CBD), provided that the plant contains less than 0.3% tetrahydrocannabinol (THC). Any Cannabis sativa L plant or derivative from such a plant with a higher THC level is considered “marijuana,” which remains a Schedule I substance – the most stringently regulated category of narcotics – under the Controlled Substances Act. Because THC is the psychoactive ingredient in marijuana that produces the feeling of being “high,” a critical difference between marijuana and hemp is that hemp will not produce a “high.” In short and for relevant purposes below, hemp-derived CBD is legal to possess under federal law (and the law of most states), whereas marijuana is federally illegal.
Sounds simple? Maybe. But what happens when an employee uses hemp-derived CBD – which under federal law may contain up to 0.3% THC – and then tests positive for THC. A federal court in Louisiana recently offered a glimpse into what comes next. In Huber v. Blue Cross & Blue Shield of Fla.,...
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