SCOTUS Case Involving Cannabis Fraud Highlights the Illogic of Federal Drug Testing Mandates
The U.S. Supreme Court last week considered a case involving a trucker, Douglas Horn, who lost his job because he tested positive for THC after consuming a CBD tincture that was advertised as completely free of that psychoactive compound. Horn sued the companies that made and marketed the tincture under the Racketeer Influenced and Corruption Organizations (RICO) Act, arguing that he was “injured in his business or property by reason of” the defendants’ mail and wire fraud.
The issue in Medical Marijuana Inc. v. Horn is whether the economic losses that Horn suffered fit that statutory language, as the U.S. Court of Appeals for the 2nd Circuit held last year. But the case also highlights the weak scientific basis for the federally mandated drug test that Horn failed, which reflects the ongoing conflict between state and federal marijuana laws.
In 2012, Horn bought Dixie X CBD Dew Drops 500 mg Tincture to treat the pain and inflammation caused by hip and shoulder injuries he had suffered in a truck accident. Since he was well aware that testing positive for marijuana would endanger his job, he investigated the product to make sure it did not contain any federally illegal substances. He says he was reassured by Dixie’s claim that its CBD extract was made from hemp containing less than 0.3 percent THC (the federal limit) and that, after processing, it contained “0.00 THC.”
According to a High Times article that Horn cited in his 2015 RICO lawsuit, the tincture was produced via “a proprietary extraction process” from “a strain of high-CBD hemp grown in a secret, foreign location.” The article said the resulting tincture “contains 0% THC and up to 500 mg of CBD.” Tripp Keber, Dixie’s managing director, averred that “we are importing industrial hemp” that is “below federal guidelines for THC, which is 0.3%,” and “extracting the CBD.” Keber said Dixie had “meticulously reviewed state and federal statutes,” and “we do not believe we are operating in conflict with any federal law as it’s related to the Dixie X (hemp-derived) products.”
Keber offered similar assurances in several YouTube videos, saying those products were “THC free” and contained “no THC.” Just to make sure, Horn says in a Supreme Court brief, he contacted a customer service representative, who “confirmed that Dixie X contained ‘zero percent THC.'”
Based on those assurances, Horn’s brief says, he “purchased and consumed Dixie X in
September 2012.” A few weeks later, he was dismayed to learn that he had tested positive for marijuana in “a routine random drug screening.” As a result, “his employer immediately fired him.” He “lost his career and income,” which meant “financial ruin” for his family.
Dixie and the other companies that Horn sued say he could have kept his job if he had agreed to complete “a substance abuse program”—”an option that Horn declined at the time.” They say he “eventually completed a substance abuse program and found work at other trucking companies, where he was employed as of filing this suit.” Although the implication is that Horn is partly responsible for the financial loss he suffered, it is understanda
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