CBD and Delta-8 THC – Military and Security Clearance Holders

Can I Use CBD or Delta-8 THC in the Military or with a Security Clearance?

Hemp-based products like CBD and the newer Delta-8 THC have exploded in the last ten years. This is thanks to the state-by-state legalization of marijuana and federal de-regulation of some hemp products. New markets and products are popping up everywhere with everything from CBD gumdrop candy to Delta-8 THC infused vape cartridges to pain cream. There are often overlapping state and federal laws, regulations, and policies that create a minefield of traps for military personnel, federal employees, and contractors. Confusing product labels and FDA statements often complicate these issues. This article discusses the differences and similarities between the popular CBD and the up-and-coming Delta-8 THC. It then looks at each product through the lens of the military discipline and the security clearance system and discusses the potential effects and pitfalls of using CBD and Delta-8 THC.

CBD vs. Delta-8 THC. What are they, and what is the difference?

Let’s start with some quick definitions:

Cannabis refers to one of three plants containing chemical compounds with psychoactive properties. One of these plants — cannabis sativa — exists in two varieties: “marijuana” and “hemp.”

CBD, or “cannabidiol,” is one of over 100 different chemical compounds found in hemp and marijuana. It may also contain small amounts of THC depending on how it is produced and marketed.

THC, or “tetrahydrocannabinol,” is a chemical compound found in hemp and marijuana. It produces a psychoactive effect (or “high”) when ingested.

Delta-8 THC is a rare and mildly psychoactive chemical found in marijuana and hemp. It is often made from hemp-based CBD and produces a muted “high” compared to the Delta-9 THC in most marijuana products.

CBD has been on the market for more than a decade in various forms. CBD is most often derived directly from hemp and occurs naturally in high concentrations. CBD usually does not produce the same high that marijuana users may be familiar with. CBD is legal at the federal level if the THC content is below 0.3%. At the state level, legalization and regulation vary widely. You should consult a local attorney or regulatory agency in your state before assuming that it is legal in your state.

Delta-8 THC is a relatively new compound on the market. It is rare in nature. Because it is so rare, it has to be converted from CBD or Delta-9 THC. Depending on the source, the conversion process can make the final product illegal (i.e., whether it comes from hemp-based CBD or marijuana-based Delta-9). Unlike CBD, Delta-8 THC can produce a noticeable “high” effect. Hemp-based Delta-8 THC is legal at the federal level, but state laws are very different on how they treat the product. As with CBD, you should consult a local attorney or regulatory agency before assuming that Delta-8 THC is legal in your state.

CBD, Delta-8 THC, and Military Discipline

While CBD and Delta-8 THC may be legal federally, and even in the state in which you live, the Department of Defense (DoD) prohibits service members from ingesting either. THC itself is explicitly banned in the military. Delta-8 is not permitted regardless of its source. CBD can cause some drug test labs to report a positive drug test for THC. This can be used as evidence of marijuana use or other prohibited THC ingestion. Additionally, because CBD and Delta-8 THC products are not evaluated by the Food and Drug Administration (FDA), there have been multiple instances of misleading or mislabeled products with illegal levels of THC. While most drug testing has improved to tell the difference between metabolized CBD and marijuana and synthetic THC, the DoD prohibits service members from using any hemp-based products, including CBD or Delta-8 THC.

Violating DoD policy on CBD and Delta-8 THC will subject a service member to military discipline. It will also likely result in mandatory processing for administrative separation. Punishment can result from a positive drug test or any other evidence of knowing ingestion. To put it plainly: If you have ingested CBD or Delta-8 THC while serving in the military, your career is already in jeopardy.

CBD, Delta-8 THC, and Security Clearances

Security clearance cases involving the use of CBD or Delta-8 THC are a lot more case-specific. If you hold a clearance as a military service member, your security clearance is in jeopardy because you have used an illegal substance while holding a security clearance. This really presents two problems:

  1. You will have to report using an illegal substance within the last seven years when updating your SF-86 (eQIP). Using these products without a valid prescription violates DoD policy. Violating that policy triggers Article 92 of the Uniform Code of Military Justice UCMJ), making it illegal for military personnel to use CBD or Delta-8 THC.
  2. You will have to report using an illegal substance while holding a security clearance forever. This question on the SF-86 (eQIP) is not time-limited. For every investigation, re-investigation, or special access program request, for the rest of your life, you will have to report it.

Using CBD or Delta-8 THC while serving in the military places your immediate career at risk and can also jeopardize future career opportunities. For certain enlisted specialties and most officer positions, failing to maintain a certain clearance level can make you ineligible to continue serving. So even if you are not separated for misconduct after violating the DoD policy on CBD or Delta-8 THC, you may still be separated for failing to maintain a security clearance. A security clearance revocation or denial is extremely difficult to overcome. Given that more government civilian and contractor positions require security clearances than ever before, a security clearance issue can make a huge difference in employment opportunities outside the military.

If you hold a civilian job with a security clearance and are not serving in the Reserves or National Guard, CBD and Delta-8 THC products may be used if they comply with both federal and state law and your employer’s workplace policies. The caveats here are important:

  1. State law may prohibit the use, purchase, or possession of CBD and Delta-8 THC, making it illegal locally. Violations of state law resulting in an arrest are reportable incidents, may result in felony drug charges, and will almost certainly negatively impact your security clearance eligibility.
  2. If you work in a facility that requires regular drug testing, there is a possibility that CBD and Delta-8 THC may return a positive test indicating marijuana use. A positive drug test will likely be reported to your security manager and negatively affect your clearance eligibility.
  3. Individual agencies, contracting companies, and special access programs may have differing policies on the use of CBD, Delta-8 THC, and other substances. If you are unsure about company or agency policy, you should consult your Human Resources Office (HRO), Security Officer (SO), or Facility Security Officer (FSO), or an attorney.

When it comes to CBD and Delta-8 THC, the safest bet for military personnel and security clearance holders is to avoid them. The risk of career-ending discipline and lifetime employment-related complications is high even when these products are consumed legally and responsibly. If you are still considering using CBD or Delta-8 THC, the next best course of action is to ask for permission so that you do not have to ask for forgiveness. If you find yourself in the position of needing to ask for forgiveness, whether it be in the form of military discipline, a Statement of Reasons, a Letter of Intent to Revoke Clearance, or an unfavorable suitability/fitness decision, the attorneys at Korody Law, P.A. in Jacksonville, Florida are always on call. We understand the nuances of drug testing procedures and how the various state and federal regulations can impact your military career, security clearance, and beyond. Call today for a free and confidential consultation and let us put our skills to work for you.

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Jacksonville FL Military Lawyer Patrick Korody handles personal injury, criminal defense, and military law issues including court-martial, security clearance revocation, security clearance denied, security clearance suspended. Jacksonville Florida Mayport Kings Bay NAS Jacksonville NAS JAX Naval Station Mayport Patrick Air Force Base Charleston Naval Weapons Station NAS Key West NAS Pensacola NAS Whiting Field Criminal Defense Lawyer. Criminal Defense Attorney former JAG lawyer provides services to Navy Air Force Marine Corps Army military members. Court-Martial Court Martial Courtmartial adsep boi security clearance revoked security clearance suspended. Military member DUI in Jacksonville, FL. Military sexual assault defense lawyer: sexual contact, rape, indecent assault, child pornography possession. Under investigation by NCIS? Call us. NJP appeals. Administrative Separation Boards. Military trial attorney. Civilian counsel for military members. Offices located on Mayport Road.