Could legal hemp put your security clearance at risk?
Just because something is legal doesn’t mean it’s a good idea. This is even more true when the legal product is almost the same as one that’s still illegal.
Government Executive recently pointed out that CBD oils are often loosely regulated—or completely unregulated. Manufacturers often fail to list their product’s THC levels. Buy the wrong product, and you might find yourself in possession of marijuana instead of hemp. This could be trouble for anyone, but it could be a disaster for federal employees who need to maintain their security clearances.
What should you know about hemp and CBD oils?
The 2018 Farm Bill lies at the heart of Government Executive’s reminder. It removed hemp from the FDA’s list of controlled substances. And that change prompted an explosion of new hemp products, many of which aren’t yet legal.
The confusion owes largely to the fact that hemp is closely tied to marijuana. In fact, the differences between the two are often misunderstood and hard to identify:
- Hemp and marijuana are both names for different types of Cannabis plants
- Hemp is a term used to describe Cannabis plants with less than 0.3% tetrahydrocannabinol (THC)
- The plants look and smell alike
- Hemp generally doesn’t get people high
- Hemp and its derivatives are legal, but marijuana is illegal in many states and at the federal level
Cannabidiol, or CBD, is a hemp derivative. It’s legal, but as The Washington Post recently noted, it’s still not legal in food. But that hasn’t stopped manufacturers from making it available in food. Nor has it stopped them from selling CBD in places they’re not supposed to. The Post noted that it purchased 11 different CBD items from Amazon, even though the online giant claims it bans the substance.
As you might expect, the manufacturers willing to break the law and violate Amazon’s online policies might not be the most reliable sources of information. Their hemp products might actually contain more than 0.3% THC. And that means if you use them, you could fail a drug test. You could put your clearance at risk.
CBD and your career
While the military still bans CBD use, other employees may need to use their discretion. If you choose to use CBD, your career could hang on the accuracy of some product’s labeling. You shouldn’t be punished for using products within your rights. But if those products aren’t labeled correctly—and you fail a drug test—you’ll want to build a strong case.
As Government Executive notes, your odds get better when you can show the product listed its ingredients and an acceptable THC level. Your due diligence could pay off.
Just because something is legal doesn't mean it's a good idea. This is even more true when the legal product is almost the same as one that's still illegal
Security clearances under the Cannabis Act and Regulations
On this page
- Overview of the security clearance process
- Considerations for security clearance applicants
- Who needs a security check?
- How do I submit an application for a security clearance?
- What checks are conducted?
- What factors are considered in the Security Clearance Process?
- Approval of security clearance
- Notice of refusal
- Changes requiring notification
- Transfer of a security clearance
- Suspension of a security clearance
Overview of the security clearance process
Under the Cannabis Act and the Cannabis Regulations, key individuals associated with the holders of certain classes of licences must obtain a security clearance from Health Canada. Security clearances help minimize the risk to public health or public safety, including the risk of cannabis being diverted to an illicit market.
The security clearance process includes checks to determine whether the applicant for a security clearance poses a risk to public health or public safety, including the risk of cannabis being diverted to an illicit market or activity. The checks conducted go beyond the verification of an individual’s criminal record and can include a check of the relevant files of law enforcement agencies, including intelligence gathered for law enforcement purposes. The checks are coordinated by the RCMP and can include consultation with local and other law enforcement agencies and coordination of intelligence with law enforcement agencies in other jurisdictions.
Following the review of all relevant information, Health Canada determines whether the applicant poses an unacceptable risk to public health or public safety, including the risk of cannabis being diverted to an illicit market or activity. Factors that may be considered to determine the level of risk posed by the applicant include those set out in section 53(2) of the Cannabis Regulations. The period of validity for a security clearance cannot exceed five years. Individuals that require a security clearance should make note of when a new clearance should be requested and ensure there is sufficient time for this process.
The information provided in this webpage should be read in conjunction with relevant sections of the Cannabis Act and its regulations. In the case of any discrepancies between this document and the Cannabis Act and its regulations, the latter shall prevail.
Considerations for security clearance applicants
The time needed to complete security screening is variable as each case is unique. For many individuals, security screening can take a few months. For others, the security screening may be longer and take several additional months to complete depending on any necessary consultations with other law enforcement agencies. In rare cases it has taken over one year to complete. Other factors, such as multiple addresses and/or employers over the past five years, or individuals who have lived abroad, could affect the time required to complete this process. The information revealed by the checks and/or the need to seek additional information from a security clearance applicant either in the form of written representations or otherwise, can also affect the overall amount of time required to complete this process.
It is to the licence applicant’s advantage to know, as much as possible, the individuals applying for security clearances. A licence may be refused if individuals occupying the specified positions do not hold a valid security clearance.
Individuals applying for a security clearance must create their own account in the Cannabis Tracking and Licensing System (CTLS), and information on the status of their security clearance application is available through their CTLS account.
In order to maintain the integrity of the security clearance process, neither Health Canada nor the RCMP are able to provide further information regarding ongoing security clearance applications.
Further questions regarding the security clearance application process should be directed to Health Canada by email at [email protected]
Who needs a Security Check?
Security clearances are automatically required for cultivation, processing and sale licences. Table 1 identifies the individuals for which a Security Clearance Application must be submitted for the different licence classes.
Refer to section 50 of the Cannabis Regulations for the exact list of individuals who are automatically required to hold a security clearance.
How do I submit an application for a security clearance?
For information on how to submit security clearance applications through CTLS, and for security clearance application requirements , please see the Application Guide along with the Cannabis Act and its regulations.
Incomplete security clearance applications for any of the individuals may result in a delay in the consideration of the application for a security clearance and of the application to become a licence holder.
For security clearance applications associated with a new licence application, the overall licence application must pass Health Canada’s initial screening stage of the application process before security clearance applications will be reviewed.
When a licence application is received and successfully passes Health Canada’s initial screening stage of the application process, an invoice for the security screening fee(s) will be sent (a fee is charged for each security clearance application). Once the fees are paid, the application is advanced to the security clearance stage. At this time, the RCMP will be engaged and the security clearance process begins.
The security clearance application process is the same for Canadian and non-Canadian citizens.
As part of the security clearance process, each of the individuals who is or will be required to hold a security clearance must complete the Security Clearance Fingerprint Third Party Consent to Release Personal Information form that will allow a Canadian police force (or a fingerprinting company accredited by the RCMP) to electronically submit fingerprints to the RCMP for the purposes of a criminal record check.
Information on the fingerprinting process, including a list of agencies accredited by the RCMP is available. Please bring the Third Party Consent form with you to your local police, RCMP detachment, or RCMP accredited fingerprinting agency to ensure results are sent to Health Canada. Please note the following:
- The Third Party Consent form must be submitted to the RCMP at the same time as your fingerprints are taken by the fingerprinting agency. The form authorizes the RCMP to release the results of the criminal records check to Health Canada via the address listed on the form.
- Retain a copy of this form for your records as proof of receipt that your fingerprints were taken.
- The Document Control Number (DCN) should be provided by the fingerprinting agency on the bottom portion of your form. This number can be used by Health Canada to track the status of your request for a criminal records check.
- There may be some costs associated with having a criminal record check conducted. Contact the fingerprint service provider for more information.
What checks are conducted?
As part of the security clearance process, checks may be conducted, including:
- a criminal record check in respect of the applicant
- a check of the relevant files of law enforcement agencies, including intelligence gathered for law enforcement purposes
These checks involve a rigorous examination of each individual requiring a security clearance and can take a few months or longer.
What factors are considered in the security clearance process?
Subsection 53(1) of the Cannabis Regulations provides that, before granting a security clearance, it must be determined that an applicant does not pose an unacceptable risk to public health or public safety including the risk of cannabis being diverted to an illicit market or activity. Subsection 53(2) of the Cannabis Regulations identifies factors that may be considered to determine the level of risk posed by an applicant, including factors relating to the following:
- the circumstances of any relevant events or convictions, along with their seriousness, number and frequency, and the date of the most recent event
- associations with organized crime
- involvement in or contribution to an act of violence or threat of violence
- whether there are reasonable grounds to suspect that the applicant could be induced to commit an act that might constitute a risk to public health or public safety
These factors are not the only ones that may be considered to determine the risk posed by an applicant.
Individuals who have histories of non-violent, lower-risk criminal activity (such as simple possession or small scale cultivation of cannabis plants) may be able to participate in the legal industry, depending on the circumstances.
Approval of security clearance
The security clearance applicant and any affected licence holder or applicant for a licence will be notified of the granting of a security clearance. The notice will confirm the duration of the security clearance granted.
Notice of refusal
In the case where the intention is to refuse to grant a security clearance, the following steps will be taken:
- The applicant will be notified in writing of the intent to refuse to grant a security clearance.
- The notice will set out the reason for the proposed refusal and specify the period of time within which the applicant may make written representations to Health Canada. The period starts on the day on which the notice is provided and will not be less than 20 days.
- A final decision on the security clearance will not be made until the written representations have been received and considered or before the period of time fixed in the notice has expired, whichever comes first. Both the security clearance applicant and any affected licence holder or applicant for a licence will be notified in writing of any refusal.
If an individual’s security clearance is refused or cancelled, the individual cannot submit a new application until five years have elapsed since the day on which the refusal or cancellation occurred or until a change has occurred in the circumstances that led to the refusal or cancellation.
Changes requiring notification
Section 34 of the Cannabis Regulations requires notifying Health Canada, within five days of the change, of the replacement of an individual who must hold a security clearance referred to in any of paragraphs 50(b) to (g), (i) and (j) or the addition of another such individual, other than an individual who is designated as an alternate for the position of quality assurance person referred to in section 19. Approval must be obtained under section 20 of the Cannabis Regulations before designating or replacing a Quality Assurance Person.
An individual replacing an individual who must hold a security clearance must also have a security clearance.
Transfer of a security clearance
In the case of security clearances obtained under the ACMPR and transferred to the Cannabis Act and its regulations when the Act came into force, the original expiry date continues to apply.
A security clearance under the Cannabis Regulations continues to be valid if the individual with the clearance obtains a new position within the same licence holder or at another licence holder.
Security clearances obtained through other federal, provincial or territorial government departments cannot be used under the Cannabis Regulations.
Suspension of a security clearance
Before a security clearance is suspended, there must be reasonable grounds to believe that the risk to public health or public safety posed by the security clearance holder, including the risk of cannabis being diverted to an illicit market or activity, has become unacceptable.
A suspension takes effect as soon as a notice in writing that sets out the reasons for the suspension and that specifies the period of time within which the holder may make written representations, is provided to the holder. The period starts on the day on which the notice is provided and will not be less than 20 days.
Subsection 59(1) of the Cannabis Regulations provides for the reinstatement of a suspended security clearance if:
- the reasons for the suspension no longer exist
- the holder of the security clearance demonstrates that the suspension was unfounded
- it is determined, taking into account any licence conditions imposed under subsection 62(1) of the Act, that the holder of the security clearance does not pose an unacceptable risk to public health or public safety, including the risk of cannabis being diverted to an illicit market or activity
Overview of the security clearances that are required for potential cannabis licence holders.