This is a guest blog written by Katherine Staton and Jim Struble, partners in the Aviation practice at Jackson Walker, on behalf of Charlie Bravo Aviation.
Many states have legalized the sale and use of both medical and recreational marijuana, and if you walk into a pharmacy or store, you are likely to encounter cannabidiol (CBD) oil for sale. Does this legalization and commercialized use of marijuana and its derivatives change the Federal Aviation Administration’s (FAA) or the Department of Transportation’s (DOT) prohibition of using any form of marijuana if you are an airman? No. The FAA and DOT have remained steadfast, so far, that the medical or recreational use of marijuana – and marijuana metabolites – are prohibited when performing safety-sensitive functions for a certificate holder. 14 CFR 120.33(b). To understand the FAA’s and DOT’s positions, we need to understand more about the marijuana options available today.
A 30,000-foot definition of the marijuana cannabis plant is needed to understand the use and current concerns and questions from airmen as to cannabis or marijuana. The cannabis plant, per the National Center for Biotechnology Information, U.S. National Library of Medicine, contains more than 400 identifiable chemical constituents and at least 60 cannabinoid compounds when a whole leaf is smoked or consumed. The cannabinoid compounds of tetrahydrocannabinol (THC) produces an euphoric state and affects the mental state. Another cannabinoid is cannabidiol (CBD), which can be a FDA approved medical grade to treat, for example, seizures, which is in a pure form—meaning you know what you are getting. Or, CBD can be unregulated (not FDA approved) and commercially available as an extract. The nonregulated commercially available CBD extract may be contaminated with a variety of substances or compounds, and the concerning one for airmen is THC.
It has been the position of the FAA that marijuana is a prohibited drug for airmen to use, as marijuana is a controlled substance affecting the mental state. Additionally, there are currently no waivers and no special issuances for the use of medical marijuana—for example, a SODA (Statement of Demonstrated Ability). See generally DOT “Medical Marijuana” Notice. Even though some states legalized recreational and medical marijuana, and related compounds, federal law, not state law, governs FAA medical and pilot certification. See 14 CFR 120.1 to 120.227 (Drug, Alcohol and Testing Program under the Federal Aviation Regulations (FARs)). Federal law specifically prevents an airman from using a controlled substance, such as marijuana, while operating an aircraft. This preclusion also prevents, for now, airmen from using readily available and commercially sold CBD, especially since CBD may contain a percentage of THC.
For employers of pilots and airmen, the employer must meet all FAA regulations as to drug use and allowed drugs or prohibited drugs airman can use. 49 CFR 40.11. If an applicant airman undergoes a pre-employment drug test and the testing results in a verified positive drug test, the employer cannot hire that individual. 14 CFR 120.109(a).
If an airman were to test positive for THC during a DOT/FAA drug test, the airman would not be qualified to hold an airman medical certificate. In the past (and only on rare circumstances), FAA Aeromedical has issued an airman medical certificate under the special issuance provisions of 14 CFR 67.401 for “accidental” ingestion of marijuana. As one can imagine, proving “accidental” ingestion is an arduous and lengthy process. However, even this limited remedy would be unavailable to the airman who tested positive for THC from intentional ingestion of CBD oil. And the result would be the same – no medical certificate – even if the CBD oil was prescribed by a medical doctor for valid medical reasons.
The bottom line is a Medical Review Officer cannot verify a drug test as negative even if a doctor prescribed “medical marijuana,” in a state where “medical marijuana” is legal. Nor will the FAA allow an airman to retain the airman medical certificate if a drug test is positive for THC.
Katherine Staton and Jim Struble are partners in the Aviation practice at Jackson Walker, focusing on both aviation litigation and transactional matters. A CPA and private pilot, Ms. Staton assists clients with buying and selling aircraft, strategizing with clients and confronting challenging legal issues. An Airline Transport pilot who served over 24 years for a major U. S. carrier where he retired as a captain after logging more than 15,000 hours in the B-737, MD-88, MD-90, B-727 and L-1011, a retired Air Force instructor pilot and flight examiner with more than 4,000 hours of military flight time in the C-141 and KC-10, and a veteran of Operation Desert Storm, Mr. Struble handles regulatory and enforcement matters, including dangerous goods/hazardous materials and drug and alcohol testing matters, for both air carriers and pilots and has successfully tried cases before NTSB Administrative Law Judges.
 Atakan Z. “Cannabis, a complex plant: different compounds and different effects on individuals.” Ther Adv Psychopharmacol. 2012;2(6):241–254. doi:10.1177/2045125312457586