Fun_People Archive
15 Apr
False Positives on Drug Tests

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From: Peter Langston <psl>
Date: Wed, 15 Apr 98 00:19:05 -0700
To: Fun_People
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Subject: False Positives on Drug Tests

X-Lib-of-Cong-ISSN: 1098-7649
Forwarded-by: "george m. anderson iii" <georgea3@ix.netcom.com>
Forwarded-by: Arthur Livermore <alive@pacifier.com>
From: Scott Dykstra <rumba2@earthlink.net>

Hemp-Oil Urinalysis Acquittal Puts Piss-Testing in a Hard Place

An Air Force master sergeant's acquittal on urinalysis-based drug charges
has caused the drug-testing industry to gird for an anticipated flood of
litigation from non-drug users who have wrongfully lost their jobs or been
denied employment.

In US v. Gaines, a military case involving a 41-year-old airman at Dover
Air Force Base in Delaware, all charges were dropped last December after a
toxicologist explained to the jury that the THC found by drug-testers in
his urine was attributable to the ordinary hemp-oil dietary supplements,
bought at a local grocery store, which he'd been taking regularly for years.
According to a report in last July's issue of The Journal of Analytical
Toxicology, "A dose consistent with the manufacturer's recommendation of
one to four tablespoons per day (15-60 mL) would be sufficient to cause a
positive finding for cannabinoid metabolites in a workplace urine
drug-testing procedure designed to detect marijuana use." (HighWitness News,
Feb. '98.)

The precedent established in the Gaines case, abetted by a growing body of
scientific evidence illustrating the forensic inadequacies of commercial
drug-testing, has deeply concerned the industry's proponents. To its credit,
the leading monthly newsletter directed toward drug-testers has confronted
the issue head-on. MRO Alert, published by the American Association of
Medical Review Officers in Chapel Hill, NC, has devoted plenty of space in
recent issues to acknowledging the knotty scientific and ethical issues
posed by drug-testing's questionable reliability. Its target audience of
medical review officers--individuals hired by corporations and public
agencies to maintain the legal "confidentiality" of their drug-testing
programs--have been enjoying a crash course in constitutional law, among
other instructive topics.

"It could be argued that federally mandated drug-testing fails the Supreme
Court's constitutional test of reasonableness," the MRO Alert cautioned in
its January 1998 issue, "if drug-testing procedures cannot distinguish
between the use of commercially distributed hemp oil and illegal use of
marijuana." Citing the Gaines precedent, it suggested, "Not only is there
a prospective problem of prosecuting future urinalysis cases, but there
could well be new appeals filed on old cases based on this new defense."

This warning is directed primarily to government agencies and contractors,
who are required to follow a modicum of scientific procedure to qualify for
"a narrow exception to the Fourth Amendment requirement that a search
requires a warrant based on probable cause." (Private employers who consider
themselves unburdened by Fourth Amendment constraints may ill-advisedly
believe they can use even shoddier drug-testing procedures.)

"It is simply a matter of time," predicted MRO Alert, "before federal
drug-testing programs will be legally challenged on this constitutional
issue." A well-reasoned challenge, it added, might result in a federal court
enjoining the practice entirely, and also "would probably enjoin employers
from taking any adverse employment action... when there is no independent
cause to suggest illegal marijuana use."

Last year, the federal Department of Transportation ruled that its
supervisors could not accept hempseed oil as an explanation of a
THC-positive test sample, because it would supposedly not qualify as a
"medical" explanation.  Since untold numbers of non-drug-users are currently
taking regular doses of nutritional hemp oil for its proven content of omega
acids, though--and taking it in preference to less easily digestible
supplements, with the specific medical intention of maintaining their
health--the DoT's administrative ukase may not vanquish basic legal
challenges. "There is a reasonable expectation," MRO Alert considers, "that
DoT's policy and drug-testing program may be challenged on the basis of THC
contamination and the reasonableness of its policy."

Companies might try ordering their employees to avoid certain general
health-food items as a condition of employment, of course--but then what
about the majority of non-drug-using employees who would be denied access
to all these perfectly legitimate articles of commerce? On the other hand,
specifically forbidding hemp-oil preparations would just give the game away:
"A prevalent concern about giving individuals notice of hemp oil is," the
MRO Alert gloomily concludes, "that knowledge becomes their automatic
defense."

© 1998 Peter Langston