THC false positives are too frequent and the consequences can be devastating for thousands of people
Thousands of people have lost their job, driver’s license and even child custody as a result of false THC positives detected by dysfunctional devices that are not calibrated to accurately detect THC consumption. In fact thousands of CBD consumers have been victims of this system. This is the case of Mark Pennington, who in June 2018 his ex-girlfriend tried to take custody of the 2-year-old son they have.
His ex-partner had taken a hair follicle from the boy and sent it to analyze in a laboratory. A drug test tested positive for THC, the psychoactive cannabis cannabinoid. There was no doubt that the boy had been exposed to this marijuana compound while he was with Mr. Pennington. Social services informed him that from that moment he would be allowed to see the child only once a week and under supervision.
Mr. Pennington was as sorry as he was surprised because he knew it was impossible since neither he consumed THC, and of course the 2-year-old boy either. But Mr. Pennington had been giving the boy honey infused with CBD, the cannabinoid without the psychoactive effects of marijuana. THC is illegal at the federal level, as was the entire cannabis plant until last December the Farm Bill legalized hemp, cannabis that contains less than 0.3 percent THC, and the CBD was legalized. No doubt this law was a great success of the administration of President Trump.
Mr. Pennington, who lives in Colorado, where hemp cultivation for CBD extraction has been legal since 2014, had been working for the Hemp Honey Company, which sells raw honey with CBD infusion. Pennington was desperate thinking he could lose the custody of his son. His instinct told him that there had to be some relationship between honey with CBD and the test that had tested positive for THC. But he spoke with Frank Conrad, the chief technology officer of Colorado Green Lab, a scientific consultancy for the cannabis industry.
Mr. Conrad showed him a little-known study published by the Journal of Analytical Toxicology in 2012 and showed that a common forensic method of drug testing could very easily confuse the presence of CBD with THC. Conrad told him that it was very possible that the drug testing laboratory had been wrong and that the honey with CBD that Mr. Pennington had given his son had caused the THC positive.
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Two independent chemists reviewed the study and confirmed the validity of possible false positive THC. Mr. Pennington won joint custody and now wants to sue the laboratory that conducted the drug test to raise awareness about the problematic test method that could ruin the lives of thousands of Americans who consume CBD.
Conrad, who has worked on numerous cases of THC false positives, says he can’t imagine how many people can affect this issue. In a case that Mr. Conrad consulted, a couple living in Florida was accused of possessing marijuana after a CBD candy tested positive for THC. Another Conrad client was arrested for violating his probation after testing positive for THC while he claimed he had only used CBD. But the truth is that in each court case in which Mr. Conrad has explained the problem with this specific method of drug testing, prosecutors have dropped the charges.
Bruce Houlihan, director of the Orange County criminal laboratory in California, and chairman of the emerging drug and opioid committee of the American Crime Society Laboratory, also shares Conrad’s same concern when he says that if any laboratory is using this method, should be very prudent. Furthermore, it is currently impossible to know how many drug analysis laboratories could accidentally confuse CBD with THC, because forensic laboratories decide their methodology internally.
It is impossible to know how many have affected the false positives of THC, to know how many people have lost their job or the custody of their children because drug test data is private. And public data can be complicated to study. In many cities, official statistics on “drug driving” make no difference between drivers who test positive for THC and those who test positive for other drugs. But a drug test that identifies CBD as THC can unfairly ruin the lives of thousands of Americans. In states that have legalized cannabis, it is legal for employers, child protection services, public housing authorities and other entities to require THC tests. To further complicate the issue of false THC positives, a survey conducted earlier this year by a major entity has concluded that 7 percent of American adults, who are a total of 17 million people, consume CBD.
The drug test method questioned for giving false THC positives uses a chemical analysis device called gas chromatography mass spectrometry machine, or GC-MS. Most of these devices need the drug analysis laboratory to add a chemical to a sample to identify traces of illegal compounds through a process known as “derivatization.” Laboratories can perform derivatizations using different chemical agents, but one of the most commonly used is called trifluoroacetic anhydride or TFAA. According to the article published in the 2012 Journal of Analytical Toxicology that Conrad taught Mr. Pennington, when TFAA was used in a GC-MS machine, it could not differentiate between CBD and THC. If a person using only CBD had a drug test using this device, the results would be false positive for THC.
Many laboratories have changed the GC-MS analysis to a more precise technique known as high performance liquid chromatography. But unfortunately, many laboratories still use GC-MS and many may be using TFAA. Most laboratories that use GC-MS have to derivatize and TFAA is a very common derivatizing agent.
Barry Sample, director of science and technology at the Quest Diagnostics laboratory, which is the largest drug testing provider in the United States, said he knew the problem described in the article published in 2012 in the Journal of Analytical Toxicology and that Conrad had taught Mr. Pennington. But Barry Sample said that Quest Diagnostics did not use this methodology in the case of Pennington. Sample said they had used a different analytical procedure. However, a woman who was fired from her job for testing positive for THC after a urine drug test analyzed by Quest Diagnostics and who wishes to remain anonymous assures that a CBD product made her positive for THC. This woman had been taking the CBD product for a few weeks when she went to a drug test scheduled at the company where she worked. It seems that we are facing other cases of false positive THC.
CBD products sold through channels that do not have a state license are not regulated. Obviously, sellers of these products say they are selling CBD. But in reality it is not so or in some cases they may contain more than the legal limit of THC, according to the tests carried out by the Food and Drug Administration. This may be the cause of certain CBD consumers tested positive for THC, which further complicates the problem of false THC positives.
Barry Sample said that this was probably the problem with the CBD product that the woman who has been laid off from work had and for which Quest Diagnostics had detected THC. But this woman says that the CBD product she bought did not have THC and that she had bought it from a well-known and prestigious dispensary.
THC false positives in drug tests are one of the many problems that arise as police authorities do what they can to catch up with the changing laws of the modern cannabis industry. An example of this is the fact that there is no exact test or threshold to measure the psychoactive effects of cannabis. The best evidence at the moment can only show if a person has used cannabis in recent days. This makes it almost impossible to determine if a person drives while under the influence of THC.
In January, an Idaho police officer confiscated 7,000 pounds of cannabis from a truck, believing it was marijuana. But the company that owned the cargo insisted that the plants were legal hemp, rich in CBD but not THC. The company has sued the Idaho State Police, and the state has had to spend $ 250,000 on new devices to determine how much THC contained the plants. Meanwhile, the plants are still in quarantine waiting for the case to be tried in court.
The issue of THC false positives affects thousands of people in the military, people who could lose their jobs, people who could lose custody of their children and people who could go back to jail for having broken the conditions of probation for consumption of THC.
