However, the new guidance notes that hemp-derived products that do contain greater than 0.3% THC continue to remain illegal and, therefore, potentially a problem for clearance holders. The memorandum explains that CBD usage can still itself be a problem because the Food and Drug Administration (FDA) does not certify levels of THC in individual CBD products. Because there is no federal system for ensuring compliance with the .3% THC allowance, some CBD products could be labeled incorrectly in that they contain higher—and therefore federally illegal—levels of THC. The memorandum notes that some studies have shown that this mislabeling does occur in some CBD products labeled as being “hemp-derived,” and that therefore, even CBD products that are sold apparently in compliance with federal law may in fact have enough THC in them to render them technically illegal—and to potentially cause a positive drug test for marijuana.
The guidance suggests that CBD products that do cause a clearance holder to test positive for marijuana use could cause a negative security clearance action as part of such an agency-administered employment or random drug testing program. The guidance, however, doesn’t really explain how far security clearance adjudicators will consider regular CBD use that does not result in a positive drug test. The risk is framed as primarily stemming from agency drug tests that might detect THC present in CBD products—rather than, e.g., the notion that anyone who admits to using CBD products should be considered to also be using illegal amounts of THC. Although the latter argument is not expressly rejected, the new guidance does clearly focus more on the risk of mislabeled, THC-heavy CBD products accidentally causing positive tests for marijuana.
Use of Marijuana: The DNI essentially restates the current standard used for determining whether prior marijuana use raises a security concern and whether that concern has been sufficiently mitigated. The guidance states that marijuana usage is “relevant, but not determinative” in the security clearance process. Of course, like other factors in the security clearance calculus, “relevant, but not determinative” can be interpreted by different agencies in very different ways, so the weight given to marijuana-related conduct is likely to vary by agency, as is the case for many aspects of clearance decisions.
It appears that the DNI is trying to reiterate the existing guidance that some prior marijuana usage will not be an automatic disqualifier. However, as before, security clearance holders or applicants still should clearly refrain from any marijuana use in advance of seeking (or while holding) a cleared position. Also, the guidance states that an individual who indicates an intent to continue using illegal drugs in the future (e.g. marijuana) will be disqualified from holding a security clearance. As such, the fact that a clearance holder or applicant’s state of residence has legalized the drug does not change the fact that its use remains federally illegal and that any use of illegal drugs is likely to weigh against a positive clearance decision. At the same time, the DNI stresses that any such use should be balanced with the person’s overall history and character (the whole-person concept) when an agency is making a clearance decision.
The DNI does note the possibility of a future change in federal law regarding marijuana, stating that if this were to occur, the office “may reexamine” the standards governing marijuana use as part of security clearance decisions “and determine whether updated guidance is appropriate.” This statement does not really tell us anything new, but security clearance holders and applicants should note that even if federal marijuana laws and regulations were to change in favor of medicinal and/or recreational legality, the updated laws would not necessarily immediately change the impact of marijuana use on clearance decisions. The DNI, acting as the government’s Security Executive Agent (SEA) in promulgating the standards and guidance, would have to actively “reexamine” the current standards and then change them. As a result of this inherent administrative delay, clearance holders and applicants should be wary of the distinction between marijuana use potentially becoming legalized at the federal level, and marijuana use becoming “kosher” in a security clearance context.
Investments in Marijuana: The new DNI guidance is helpful in clarifying a confusing area for security clearance holders concerning involvement in marijuana businesses and/or investments. We have received many inquiries from clearance holders about where the line is drawn with respect to investing in marijuana businesses while marijuana distribution remains, technically, a federal crime, and while direct investment can therefore be seen as financially supporting criminal activity. This new guidance makes it clear that direct investments in marijuana businesses are still cause for losing a security clearance until Congress changes the Controlled Substances Act or until marijuana is rescheduled by an appropriate agency such as the Drug Enforcement Agency (DEA) or the Department of Health and Human Services (HHS). This is the case even in states that have legalized marijuana entirely. Basically, the DNI draws the line at whether the individual knowingly is involved in a marijuana investment, business, or stock. If the investment is only indirect, such as if it happens to be part of a diversified mutual fund, for example, then there is a presumption that the investment is not security clearance issue. This clarification may help assuage any concerns of this kind of indirect investment leading to a clearance issue.
However, for all these policies—especially given the rapidly changing landscape of marijuana laws at the state level, combined with the increasing prevalence of theoretically-legal CBD products—we believe that this guidance will likely be updated again within the next few years. A significant change in federal law would be the most likely cause of such revisitation, but as the federal government continues to learn to coexist with the state-level shift in marijuana laws and regulations, it is also possible that the federal government entertains other kinds of policy shifts regarding marijuana use and security clearance decisions. At the very least, the clarification in the new guidance about direct versus indirect investment in marijuana businesses provides a clearer answer that may persist while the tension between federal and state laws remains.
Conclusion
When a government contractor, federal employee or military member is in need of a security clearance lawyer for just legal advice or representation please contact us. Our law firm advises individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located here and our Twitter account here.
BERRY & BERRY PLLC 