As cannabidiol (CBD) products become more freely available, companies need to prepare for how this might impact on zero-tolerance drug policies and cannabis testing

Since the decriminalisation of possession, use and cultivation of cannabis in private dwellings by the Constitutional Court in 2018, there has been a rapid surge of products containing CBD on the South African market. This non-psychoactive ingredient found in cannabis reportedly offers therapeutic benefits and features in products ranging from dog treats to smoothies.

While there has been a surge in products containing CBD, suppliers and distributors find themselves navigating an uncertain and difficult regulatory environment. Originally, the ingredient was considered a scheduled substance in terms of the Medicines Act.

This meant that products intended for therapeutic purposes that contained CBD could only be sold by pharmacists to consumers who held a prescription. With the decriminalisation of cannabis, the Department of Health has created a significant space for CBD products to be sold directly to consumers.

As of May 2019, all products that contain a maximum daily dose of 20 mg of CBD – and are intended for general health enhancement or relief – are exempted from the schedules of the Medicines Act.

However, products that fall within this threshold and are intended for therapeutic use may still be required to register as complementary medicines with the South African Health Products Regulatory Authority (SAHPRA).

Once registered, the products can be sold directly to a consumer. In other words, products with less than 20 mg of CBD will be considered over-the-counter medicines and may be sold openly in pharmacies, wellness stores and other outlets. Any product containing more than 20 mg of CBD will be considered a scheduled substance and would require a prescription.

Notably, all processed products that contain naturally occurring CBD and tetrahydrocannabinol (THC) may now be sold to consumers without any restrictions – provided that no more than 0,0075 percent of the product contains CBD and not more than 0,001 percent of the product contains THC (the psychoactive substance found in cannabis).

This change has implications for the commercial use of CBD in the manufacture of other products, including foodstuffs and alcohol. Before the recent amendment, consumer products such as beer brewed from hemp seeds, hemp seed protein, hemp cooking oil and even flax seeds were classified as scheduled substances by the authorities due the presence of trace amounts of CBD.

These products are no longer scheduled substances, although they are still subject to other regulations that govern foodstuffs and liquor.

What does this mean for the workplace? Well, for a start, it will impact how companies test for these substances. As the use of cannabis is no longer a criminal offence, traditional methods of testing for cannabis, such as the urine test, will be insufficient.

Traces of cannabis can remain in the body for weeks. Thus, workers might test positive for cannabis use when taking a urine test even if they haven’t used cannabis on the specific day. In addition, employees who use CBD products for medical reasons might also test positive.

Rather than testing to see whether an individual has used cannabis some time previously, employers should test to see if the person is under the influence and could present an occupational hazard while at the workplace.

Drug tests are designed to pick up any trace of the psychoactive substance THC and not CBD; however, there might be very small traces of THC in the CBD products, which will result in a positive test. Therefore, companies should instead focus on testing whether the individual is currently under the influence.

A saliva test is the ideal approach. There is instant saliva drug testing equipment available that functions like a breathalyser test. The Runrite Drugilizer, for example, uses bioenzyme test strips and displays the results on the device within 90 seconds. The equipment was originally designed for the Australian police for use in roadside testing, but has now been launched commercially.

Employers might also consider revising the company’s drug policy. They need to determine the acceptable level of THC found during testing. If there is a zero-tolerance policy, they need to decide how to approach employees who consume CBD products that may contain tiny traces of THC. Ideally, companies should set an acceptable limit of THC to accommodate any small traces in CBD products.

Companies are encouraged to set a cut-off level for oral fluid cannabis screening at around four nanograms per millilitre and two nanograms per millilitre for the confirmatory test. Two nanograms per millilitre of THC in whole blood is said to be the equivalent of 0,5 g/l blood alcohol concentration.

Companies should also include in their policies the actions that will be taken if traces of THC are found. They need to stipulate whether there will be follow-up tests, whether the individual  will be suspended or sent for training or counselling, as well as the approach that will be taken in the event of an employee being found to have the substance in their possession while at the workplace.

Regular, randomised tests are still encouraged to ensure that employees are not under the influence. Employees might also benefit from training to improve their understanding of cannabis and the company’s approach. It is important for workers to understand that, although legal to use in a private dwelling, cannabis still impairs judgement and can create an unsafe workplace.

As cannabis products become more freely available, it is important to educate consumers on potential harm, responsible use and that there may be traces of THC in CBD products. With a little policy revision and planning, employers can create safe work environments without encroaching on the privacy of employees.

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