Federal appeals court may hear trucker’s CBD lawsuit

February 18, 2022

Tyson Fisher

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A trucker accusing CBD companies of costing him his job after he tested positive for marijuana is taking his case to a federal appeals court, potentially setting precedent for federally regulated CDL holders who consume CBD products.

Douglas Horn, a former over-the-road hazmat trucker, is requesting the Second Circuit Court of Appeals settle a dispute in his lawsuit against San Diego-based Medical Marijuana, Inc. and Denver-based Dixie Elixirs and Edibles.

Last September, a New York federal district court judge dismissed Horn’s civil Racketeer Influenced and Corrupt Organizations claims. That decision leaves Horn’s case with only one of nine original claims, fraudulent inducement. With the lawsuit barely a shell of its former self, Horn is contesting the dismissal of RICO claims.

CBD products are legal in the United States as long as they contain no more than 0.3% THC, the psychoactive ingredient in marijuana. Although federal law prohibits marijuana products, 37 states allow marijuana for medicinal purposes. About half of those states also allow recreational use of marijuana.

Even if truckers live in a state permitting marijuana use, they can still lose their CDL if they test positive for THC. Since over-the-road professional drivers are federally regulated, federal drug testing laws supersede any state law. Consequently, consuming CBD products can be risky for interstate truck drivers.

The Owner-Operator Independent Drivers Association and U.S. Department of Transportation both advise against CBD use among truck drivers.

CBD product leads to trucker’s positive drug test result

In February 2012, Horn suffered injuries from a vehicle crash. Several months after the crash, Horn looked into natural medicine as an alternative to the prescription medication he was taking because of the crash.

Approximately six months later, Horn responded to a “High Times” magazine ad from Dixie Botanicals regarding an industrial hemp product called Dixie X. The ad stated the product contained “0.00 THC.” THC, or tetrahydrocannabinol, is the main psychoactive compound in marijuana.

Rather, the product contained CBD, formally known as cannabidiol. Along with THC, CBD is one of 113 cannabinoids in marijuana. Dixie claimed that the product treats inflammation and pain.

In October 2012, Horn submitted a random drug screening as required by the U.S. Department of Transportation. A few days later, he was told that he had tested positive for a high level of THC. Horn was subsequently fired. He had worked for the company for 10 years and had driven professionally for nearly 30 years.

Following his termination, Horn bought some more of the Dixie X CBD oil to have a laboratory independently test the product for THC. The laboratory explained to Horn that they could not return the product to him after discovering it contained levels of THC well over the federal limit per U.S. Drug Enforcement Administration regulations and therefore illegal.

Lawsuit gutted

In August 2015, Horn filed a lawsuit against the CBD companies, claiming the following:

  • Deceptive business practices/false advertising.
  • RICO violation.
  • Fraudulent inducement.
  • Violations of products liability statutes.
  • Breach of contract.
  • Breach of express warranty.
  • Unjust enrichment.
  • Negligence.
  • Negligent infliction of emotional harm.

In an April 2019 court decision and order, six motions were decided, including summary judgements filed by both parties. Horn’s attorneys decided to drop the breach of contract, breach of express warranty, and unjust enrichment claims. Additionally, the judge agreed with some of the CBD companies’ motions and removed the deceptive business practices/false advertising, products liability, negligence, and negligent infliction of emotional distress claims from the lawsuit.

With all RICO claims dismissed, the only claim left for trial is fraudulent inducement. LL