Legal Insider: Security clearance holders face risk from CBD use and marijuana investments

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

The Director of National Intelligence (DNI) recently issued new guidance for federal agencies and security clearance holders on marijuana and cannabidiol (CBD) usage, in addition to investments in marijuana businesses. The guidance clears some issues up, but also raises new questions about the use of CBD for security clearance holders.

The three areas covered in the DNI’s new guidance include:

• Usage of CBD products
• Use of marijuana
• Investments in marijuana

Use of CBD

The most important update provided involves the use of CBD products by security clearance holders and applicants. The new guidance discusses the fact that the Agriculture Improvement Act excluded hemp with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3% from the definition of marijuana within the Controlled Substances Act.

Further, the new guidance explains that hemp-derived products that contain greater than 0.3% THC continue to remain illegal and potentially a problem for clearance holders. The memorandum explains that CBD usage can be a problem because the Federal Drug Administration (FDA) does not certify levels of THC in individual CBD products and that some products may be labeled incorrectly.

The guidance suggests the CBD products that cause a clearance holder to test positive for marijuana use could cause a negative security clearance action. 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.

Use of Marijuana

The DNI essentially restates the current standard for prior marijuana use to determine whether such behavior raises a security concern and whether that concern has been mitigated. The guidance states that marijuana usage is a problem, but not necessarily determinative in the security clearance process. It appears that the DNI is trying to make it clear that some prior usage will not be an automatic disqualifier.

Security clearance holders should clearly refrain from any marijuana use in advance of seeking (or while holding) a cleared position. Also, the guidance states that an individual that indicates an intent to continue using illegal drugs in the future (e.g. marijuana) will be disqualified from holding a security clearance. The DNI stresses that such use should be balanced with the overall person’s history (the whole-person concept) when making a decision as to whether to grant or deny a security clearance.

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 investments. The guidance makes it clear that investments in marijuana are still cause for losing a security clearance until Congress changes the Controlled Substances Act, even where states have legalized marijuana.

Basically, the DNI draws the line at whether the individual knowingly is involved in a marijuana investment, business or stock. If the investment happens to be part of a diversified mutual fund, however, there is a presumption that there is no security clearance issue.

We believe, given the rapid changing nature of CBD and marijuana laws that this guidance will be updated again in the next few years.

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