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Legal Insider: Poppers and whippets — lesser-known substances that could put your clearance at risk

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By Melissa L. Watkins, Esq. 

One of the more common issues that arise for employees, applicants, and contractors who have or are applying for a security clearance is the issue of illegal drug usage. However, recently, there has been an uptick in agencies paying attention to employees, applicants, and contractors’ use of a less common substance, inhalants.

While many individuals pay attention to and understand their duty to report prior illegal drug use, many are unaware that there are other types of use, involving substances that are not considered illegal or covered by the Controlled Substances Act, that may impact the security clearance process.

In recent years, there has been a trend towards agencies considering misuse of substances, even if the substance is not technically illegal. These agencies have suggested that such use may need to be disclosed on the Standard Form 86 and have indicated that the use may create a basis for someone being denied a security clearance.

What are inhalants, you may ask? This question is the starting point for why this area of focus by agencies is complicated and difficult to navigate. The word actually covers a variety of substances that are consumed, as the name suggests, by inhaling. There is not necessarily a finite or specific list of what substances qualify as inhalants from agencies’ perspectives. However, a starting point for the conversation would be the security questionnaire itself, currently referred to as the Standard Form 86.

The Standard Form 86 contains a section where individuals are asked to disclose their prior involvement with various substances. Under the list of substances, there is a category for inhalants where only two examples are provided: toluene and amyl nitrate.

Toluene is the substance most often associated with paint thinners. Amyl nitrate, a controlled substance requiring a prescription, was previously an ingredient in “poppers” but has not been used in that manner since 1988. However, neither of these two substances are generally what is being consumed when people are engaging in the use of inhalants.

Most people using inhalants recreationally are using “poppers” or “whippets”. Poppers is a slang term that refers to the chemical class called alkyl nitrites that are inhaled. While similar in sound to amyl nitrates, the substance listed on the Standard Form 86, this is a distinct chemical compound. Whippets refers to nitrous oxide (also known as laughing gas). The name is in reference to whipped cream canisters, which contain little chargers that are filled with nitrous oxide. Both substances can be purchased from retail establishments, do not include the substances mentioned on the Standard Form 86, and are generally not considered to be illegal.

However, there are some laws in place regulating the production and sale of ingredients in some inhalants. For example, it is lawful to manufacture and sell products made with Isobutyl (including alkyl nitrites or “poppers”) for commercial purposes but such production and sale is prohibited for human consumption. This is why you may see “poppers” or “whippets” being sold as products labeled for other uses such as whipped cream canisters, room deodorizers, leather polish, or nail polish remover, to name a few. However, the laws currently in place do not relate to the person who may end up using the substance.

Given the gray area around the substances, individuals who have engaged in such use and who hold a security clearance or intend to apply for a security clearance should seek legal advice on whether their specific use should be reported and how such use may impact their clearance process.

Our law firm advises government contractors and federal employees in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.