Federal appeals court may hear trucker’s CBD lawsuit

A trucker who accuses CBD companies of costing him his job after testing positive for marijuana is taking his case to a federal appeals court, potentially setting a precedent for state-regulated CDL holders consuming CBD products.

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

Last September, a federal district court judge in New York dismissed Horn’s civil suits alleging influence by thugs and corrupt organizations. This ruling leaves Horn’s case with only one of nine original allegations, fraudulent incitement. With the lawsuit barely a shell of its former self, Horn denies dismissing RICO’s 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 these states also allow recreational marijuana use.

Even if truckers live in a state that allows marijuana use, they can still lose their CDL if they test positive for THC. Because professional drivers are federally regulated on the road, federal drug testing laws supersede all state laws. Consequently, consuming CBD products can be risky for long-distance drivers.

The Owner-Operator Independent Drivers Association and the US Department of Transportation both advise against the use of CBD by truck drivers.

CBD product gives trucker positive drug test result

In February 2012, Horn suffered injuries in a car accident. A few months after the crash, Horn turned to natural medicine as an alternative to the prescription medication he was taking for the crash.

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

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

In October 2012, Horn submitted a random drug screening requested by the US Department of Transportation. A few days later, he was informed that he had tested positive for high THC levels. Horn was subsequently fired. He worked for the company for 10 years and drove professionally for almost 30 years.

After his resignation, Horn bought some more Dixie X CBD oil to have the product independently tested for THC by a lab. The lab told Horn they couldn’t send the product back to him after they found it contained levels of THC well above the federal limit under US Drug Enforcement Administration rules and was therefore illegal.

lawsuit defeated

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

  • Deceptive Business Practices/False Advertising.
  • RICO breach.
  • Fraudulent Incentive.
  • Violations of the Product Liability Act.
  • breach of contract.
  • Breach of Express Warranty.
  • Unjustified enrichment.
  • Negligence.
  • Negligent infliction of emotional harm.

An April 2019 court decision and order ruled on six motions, including summary judgments filed by both parties. Horn’s attorneys decided to dismiss the claims for breach of contract, breach of express warranty and unjust enrichment. In addition, the judge granted some of the CBD companies’ motions and removed the fraudulent business practices/false advertising, product liability, negligence and negligent infliction of emotional distress from the lawsuit.

With all RICO claims dismissed, the only claim remaining in court is fraudulent incitement. LL