KHVPF Insight

Poppy Seeds And CBDs

Astute employers are certainly aware of the “poppy seed” defense: following a failed drug test, the employee says “It wasn’t heroin! It must have been my bagel!” Readers of a certain age will remember this as the plot of a classic Seinfeld episode, where Elaine tested positive for opium after eating a poppy-seed muffin. But this is neither a lame excuse nor an urban legend: poppy seeds really can cause false positives on drug screen tests.

In fact, in 1995, the federal government revised its Mandatory Guidelines for Federal Workplace Drug Testing by increasing the testing threshold for a “positive” hit on opiates to “eliminate the identification of most persons…who have ingested poppy seeds.” But false positives are still possible, particularly if the laboratory in question uses old testing protocols, and that can lead to litigation—as with the 2018 case of New York City corrections officer Eleazar Paz, who was fired over a positive drug test, even after an administrative judge held that poppy-seed bagels were likely the culprit. Paz was later reinstated after continued litigation.

Employers today, particularly those who wish to ban marijuana use by employees despite Michigan’s legalization of the drug (see preceding article), should be aware of a modern-day version of the poppy-seed defense: the cannabidiol—or CBD—defense. CBD is a chemical compound that is contained within the cannabis plant, with purportedly therapeutic properties. But unlike THC, the psychoactive substance in marijuana, CBD does not cause a “high.” Changes in federal law legalizing hemp have also legalized CBD products processed from hemp, so long as they have the same low levels of THC.

This legal change has created somewhat of a CBD boom, with skyrocketing sales of CBD-infused oils, sprays, lotions, and the like. Unfortunately for CBD users, many CBD products sold on the market contain few actual CBDs, and often contain too much THC—rendering them illegal. And since marijuana drug testing looks for signs of THC, an employee who only wanted to use legal CBDs and did not want to get high might screen positive for marijuana on a workplace drug test.

Employers should take note, and consider clarifying their workplace drug policies to inform their employees about the potential side effects and consequences of CBD usage, and evaluate their drug testing protocols to determine whether false positives can be reduced.

Thomas J. Davis
February 2019