Trump Executive Order on Marijuana and What It Means for Energy Marketers

President Trump has signed an executive order, directing the Department of Justice (DOJ) and the Drug Enforcement Administration (DEA) to initiate a formal rulemaking to reclassify marijuana as a Schedule III drug (instead of Schedule I) under the federal “Controlled Substances Act.” Schedule III drugs are considered to have moderate to low potential for abuse and can have accepted medical uses, unlike Schedule I substances. Importantly, the President’s executive order does not legalize marijuana at the federal level, including for recreational use, and it does not affect state cannabis laws.

What does the President’s executive order mean today for energy marketers:

• Until the administrative rulemaking process is complete, which could take a year or more, nothing changes in practice for companies and drivers.
• In response to inquiries, the Department of Transportation (DOT) and its Federal Motor Carrier Safety Administration (FMCSA) have reiterated that safety-sensitive employees, including drivers with CDLs, are still prohibited from using marijuana under current federal rules. FMCSA’s drug and alcohol testing programs, and the drug testing requirements under 49 CFR Part 40, remain in effect.

If the DOJ and DEA finalize the schedule change for marijuana, it could undermine the current DOT/FMCSA testing regime, because drug panels and testing authority for safety-sensitive workers (e.g., truck drivers) are tied to Schedule I and II substances. So, if marijuana is moved to Schedule III, the statutory authority that authorizes DOT/FMCSA to require testing for THC would be affected, unless that authority is preserved in the final rule with a “safety carve-out.” Clearly, rescheduling marijuana without a specific safety carve-out for transportation workers would weaken energy marketers and others’ zero-tolerance use and testing programs.

Transportation-related groups already have called for such carve-out, and they add that, regardless of federal scheduling changes, they expect most trucking companies to maintain strict zero-tolerance marijuana policies as a condition of employment and insurance liability. EMA counsel suggests that energy marketers communicate with their employees that, while the president’s executive order signals a shift in federal drug policy, company drug policies and federal regulations for marijuana use and testing have not changed and remain in effect.