Want to keep winning the overdose war? Expand health interventions, not failed scheduling
This analysis is in response to breaking news and will be updated. Please contact pr@rstreet.org to speak with the author.
This week, the House is expected to vote on the Halt All Lethal Trafficking of Fentanyl Act (HALT Fentanyl Act), a bill that would make classwide scheduling of fentanyl-related substances (FRS) permanent. Relatedly, the Senate Judiciary Committee held a hearing Feb. 4 on permanent drug scheduling for fentanyl, and the Senate recently introduced their version of the act.
For nearly seven years, Congress has embraced this classwide scheduling approach to fentanyl-related substances despite the fact that it ignores science and precedent, hinders medical research, and fails to save lives. Rather than doubling down on a flawed, supply-side approach with harmful, unintended consequences, we suggest that Congress focus on health-centered alternatives that have actually been shown to mitigate the risks of illicit drug use and save lives.
What the HALT Fentanyl Act Does
The HALT Fentanyl Act would identify FRS and place them on Schedule I of the Controlled Substances Act (CSA). This means that the manufacture, import, and possession of these substances would be a federal crime subject to mandatory minimum penalties, and it could subject the drugs to restrictions that hinder legitimate and important medical research.
The United States already has legislation—the Controlled Substances Analogue Enforcement Act of 1986—that allows the prosecution of novel drugs, which are substances that have not been previously identified by drug experts. However, classwide scheduling simplifies this process by defining FRS based on their chemical structure versus their effect on the body. Because chemically similar substances can have dramatically different effects—for example, the painkiller morphine is structurally similar to overdose-reversal drug naloxone—this limited criterion for scheduling FRS is deeply flawed.
FRS Scheduling Does Not Keep People or Communities Safer
Although there is some evidence that classwide scheduling has reduced the number of novel FRS in the U.S. drug supply, the approach will not shrink the supply of illicit drugs in the current era. Synthetic substances made in a laboratory rather than derived from plants currently dominate the market. This means they are easy and inexpensive to produce and relatively simple to modify to create a different drug. In fact, new substances are continuously added to the supply. For example, the veterinary sedative xylazine is now present in nearly every state, and nitazines—a class of opioids even stronger than FRS—are gaining traction as well. And the market will keep evolving. In fact, a university lab that assesses the contents of street drugs—and which has analyzed over 10,000 samples sent in from 233 counties in 38 states—identified 126 unique substances in January alone, 13 of which they had not seen previously.
FRS Classwide Scheduling Does Not Prevent Overdose Deaths
There is no evidence that classwide scheduling of FRS has led to any reduction in overdose deaths in the United States. When people do not know what is in their supply or how potent it is, they do not know what is a safe dose or what potentially dangerous side effects to expect. In fact, research shows that the constantly changing nature of the illicit supply and a lack of consumer awareness about what they are taking—both exacerbated by drug seizures—puts individuals at increased risk for overdose.
The original executive order temporarily placing all FRS on Schedule I was implemented in February 2018, several months after the first fentanyl-driven surge in overdose deaths had already begun to level off. The next spike came in 2020, as fentanyl made its way into new markets across the country and people’s mental health and economic well-being were decimated by the COVID-19 pandemic. FRS classwide scheduling remained in place throughout this surge in fentanyl and fentanyl-related deaths.
Increased Criminalization Can Increase Overdose Risk
In addition to incentivizing a more potent, more variable, and thus more dangerous illicit drug supply, criminalization can increase overdose risk in a number of ways. When people fear criminal consequences, they are less likely to carry lifesaving tools like the overdose reversal medication naloxone or fentanyl test strips, less likely to call emergency medical services upon witnessing an overdose, and more likely to use their drug too quickly. Additionally, recent incarceration increases the likelihood that a person will experience and die of an overdose, due in part to limited treatment access and poor reintegration services.
Health-Oriented Alternatives to Addressing the Overdose Crisis
As recent declines in overdoses in much of the country suggest, multi-pronged health interventions are the most effective way to prevent overdose deaths and keep our communities safe. In recent years, for example, state and federal efforts have expanded harm reduction services and improved access to medications for opioid use disorder. And more lifesaving bills are likely to come before Congress this year. We encourage members to vote no on the HALT Fentanyl Act and consider these important alternatives instead:
- Temporary Emergency Scheduling and Testing of Fentanyl Analogues Act of 2023 (TEST Act): Temporarily extends FRS scheduling and requires testing of novel FRS for pharmacological effects, using this information to decide if and where to place them on the CSA.
- Modernizing Opioid Treatment Access Act (MOTA-A): Would allow addiction medicine specialists to prescribe, and pharmacies to dispense, methadone.
- Telehealth Response for E-prescribing Addiction Therapy Services Act (TREATS Act): Allows for the use of telehealth in treating substance use disorder.
- Reentry Act and Due Process Continuity of Care Act: Would improve Medicaid access for eligible incarcerated individuals during transitional periods, such as during pretrial periods or the month prior to release.