Drug Test Nation
By Paul Armentano
Republished from reasononline
Get a whiff of the new pot-sniffing technologies, coming to a highway near you.
One look at the Cozart RapiScan, a self-proclaimed complete “on-site oral fluid drugs of abuse diagnostic system,” and it’s obvious: This isn’t your parents’ drug test. Gone are the golden days of the plastic collection cup. The Cozart saliva testing system comes in a spiffy silver suitcase and consists of an oral fluid collection swab, a disposable test cartridge, its own handheld digital computer, and a portable printer “for a permanent record of test results.”
The official U.S. distributor of the RapiScan, The Dominion Diagnostics Corporation, was one of many hi-tech exhibitors hawking their wares in Tampa last spring at a meeting of corporate drug testers, toxicologists and law enforcement officers, sponsored, in part, by the Office of National Drug Control Policy (a.k.a. the Drug Czar’s office). But this White House–backed gathering was no trade show. The purpose of this symposium—and the intent of the bodily fluid snoopers in attendance—was to call for an unprecedented, government-mandated expansion of both drug testing and the application of new drug screening technology—and not just for those within the workplace. And the pee police may be close to getting their wish.
Random drug testing in the workplace rose to prominence in the mid-to-late 1980s, embodying the zeitgeist of the nation’s “War on Drugs” fervor. In 1986 President Ronald Reagan signed Executive Order 12564, requiring federal employees to be drug free on and off the job. Four years later the U.S. Supreme Court ruled 5-4 in the case National Treasury Employees Union v. Von Raab that suspicionless employee drug testing does not violate the Constitution’s Fourth Amendment protections against unreasonable searches. These executive and judicial moves paved the way for the unprecedented growth of workplace drug testing within the public and private sector. By 1991, 62 percent of large U.S. companies were forcing their employees to “drop trou” as a condition of employment—a figure that in recent years has dropped slightly, but still stands at roughly 50 percent. Of the nation’s approximately 1.6 million federal workers, some 400,000 may now undergo some form of drug screening.
Not surprisingly, this surge in the number of Americans peeing on demand has coincided with an explosion of alternative drug testing technology. In recent years, firms touting unconventional drug screens of citizens’ hair, sweat, and saliva have emerged, each proclaiming its state-of-the-art gadgetry to be the heir apparent to the piss cup. For the most part, however, employers have been unconvinced. Despite promises of the tests’ purported “increased sensitivity” and “less intrusive nature,” federal and private employers have generally been unwilling to rely on such Brave New World methods, virtually all of which remain largely unproved by the scientific literature and lack approval from the Food and Drug Association.
Thanks to the work of groups like DATIA, the Drug & Alcohol Testing Industries Association, things are about to change.
According to its website, DATIA is “a 1,200-member national trade association representing the full spectrum of alcohol and drug testing service agents, including laboratories, collection sites, ... and [drug] testing device manufacturers.” In layman’s terms, it’s the lobbying arm for the drug testing industry.
DATIA’s mission includes “working closely with key policy makers in federal agencies and in Congress to ensure that the interests of the industry are heard.” Recently, the group’s chief focus has been to push the U.S. Department of Health and Human Services to amend the federal workplace guidelines so that federal agencies can conduct drug screenings of employees’ hair, sweat, and saliva. (Existing federal regulations mandate drug testing programs rely on urine screens only.)
Such a change, DATIA hopes, might finally kick-start private employers to use alternative specimen technology. It would also financially benefit several of the organization’s members, many of whom have a significant financial stake in the expanded use of alternative drug screening methods.
Last April, the government finally granted DATIA’s wish, proposing to overhaul the feds’ drug testing regulations to encourage agencies to use alternative testing methods. Ironically, the proposal came at a time when positive drug tests among federal employees are at record lows. (Of those federal employees tested for drugs last year, only 532 peed positive, at a staggering cost to taxpayers of $11,466 per positive test result.)
Meanwhile, the agency backing the plan, the Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration (SAMHSA), has criticized the new technologies as seriously flawed. According to SAMHSA’s April 2004 Proposed Revisions to Mandatory Guidelines for Workplace Drug Testing, hair testing, saliva testing, and sweat patch testing all have significant limitations.
In the case of hair testing, which detects drug metabolites (inactive compounds indicative of past drug use) that have passively diffused from the blood stream to the base of the hair follicle, the agency warns that both environmental contamination and hair color can significantly impact the accuracy of the test. “The role of hair color is… a major concern,” SAMHSA says, noting that “data show that higher concentrations of some drugs are found in dark hair when compared to blond or red hair.” Studies have demonstrated similar testing inconsistencies when screening for drugs among ethnic minorities, particularly African Americans.
Environmental contamination—such as a scenario where the individual to be tested was recently present in a room where others smoked marijuana—also may negatively affect the accuracy of saliva testing, SAMHSA says. As a result, the feds are encouraging agencies to also collect a urine sample “at the same time the oral fluid specimen is obtained” for confirmation testing—although doing so will more than double the high costs already associated with specimen collection while, at the same time, likely yielding confounding results.
Regarding the efficiency of sweat patch testing, SAMHSA notes, “The Department knows from direct experience … that some individuals may not be able to wear the sweat patch for the optimal period of time.”
The fact that federal bureaucrats are willing to brush aside such technological concerns in their rush to break bread with the drug testing industry is illustrative of the growing political power wielded by America’s bodily fluid inspectors. But for the drug detection cabal, invasive testing by employers is just the first step. The next is to extend bodily-fluid-sniffing from the workplace to the roadways—and enlist the full coercive powers of the state to do so.
For the past several years drug testing superhawk Michael Walsh, a former Associate Director to the Drug Czar and current president of the drug testing and lobby organization the Walsh Group, has led the charge to apply workplace drug testing standards and regulations to all licensed U.S. drivers. In 2002, Walsh partnered with the White House to lobby state legislatures to amend their drugged driving laws, arguing that states should no longer require “impairment” as a necessary condition for prosecution. Instead, Walsh asserted that prosecutors simply charge all drivers who test positive for any level of drugs or drug metabolites as a criminal drugged driver—even if the motorist is neither under the influence nor impaired to drive!
As a result of Walsh’s lobbying efforts, eleven states—Arizona, Georgia, Illinois, Iowa, Indiana, Michigan, Minnesota, Pennsylvania, Rhode Island, Utah, and Wisconsin—have now adopted such legislation, known as “zero tolerance per se” laws. At last spring’s conference in Tampa, Walsh and his peers demanded Congress get into the act and pass legislation mandating all 50 states to enact models of his zero tolerance bill. Sure enough, federal politicians are champing at the bit to do just that.
Less than one month after the Tampa symposium, bi-partisan legislation was introduced in Congress granting police the power to drug test drivers and arrest anyone found to have “any detectable amount of a controlled substance … present in the person’s blood, urine, saliva, or other bodily substance.” Despite the proposal’s purposefully misleading title, H.R. 3922: The Drug Impaired Driving Enforcement Act, did not, in fact, require motorists to be identifiably impaired or intoxicated to be criminally charged with the crime of “drugged driving.” Rather, as in the workplace, subjects need only test positive for inert drug metabolites (which, in the case of marijuana, may linger in the urine for days or even weeks after smoking) to be found guilty. Only this time, violators won’t be losing their jobs; they’ll be going to jail.
Despite H.R. 3922’s sweeping intent to criminalize otherwise non-criminal behavior (driving while sober), congressional representatives in the summer of 2004 added the measure to the transportation reauthorization bill and promptly rubber-stamped it through the House without so much as a single hearing. However, much to federal lawmakers’ chagrin (and, no doubt, to the disappointment of many within the drug testing industry as well), the bill eventually died in conference committee.
That’s not to say America’s pee police won’t be back for another round this year with new and even more expansive proposals. In Tampa, attendees contemplated plans to enact random roadside drug testing checkpoints, while DATIA’s legislative agenda for 2005 focuses on expanding the prevalence of student drug screening. Like it or not, it’s dangerously clear the drug testers will not rest until every American has submitted to their inspection, and with more and more politicians in their pockets, they just might succeed.
Paul Armentano is the senior policy analyst for NORML and the NORML Foundation in Washington, DC.