The House of Representatives now has an opportunity to take bipartisan action on an issue Americans care about: stemming the tide of deaths caused by drugs that are 50 times more powerful than heroin. The House should approve S. 3201, the Temporary Reauthorization and Study of the Emergency Scheduling of Fentanyl Analogues Act, without delay.
Chemically altered variations of fentanyl, known as analogues, are potential killers. As demonstrated by the graphic below, a mere speck of the fentanyl analogue carfentanil can cause death. Members and staff may be surprised to learn that our laws do not specifically prohibit many of these dangerous drugs.
But here is the reality: Sophisticated producers, largely based in China and Mexico, regularly alter the chemical composition of these substances, sometimes by as little as one molecule, to evade U.S. drug laws. Although the resulting narcotics can retain their psychoactive effects and too often result in overdoses, they do not fall under the scientifically precise text of existing law.
That’s why the Drug Enforcement Administration in 2018 exercised its emergency authority to designate the entire class of unscheduled fentanyl analogues as Schedule I narcotics, which covers drugs with a high potential for abuse and no accepted medical use. (Other Schedule I drugs include heroin, LSD, and methamphetamine.)
The move deterred criminal behavior and cut the prevalence of law enforcement encounters of new deadly fentanyl analogues by half.
As Amanda Liskamm, the Department of Justice’s director of opioid enforcement and prevention efforts, testified before the Senate, “From a legal perspective, class-wide scheduling alleviates DEA’s cat and mouse game of emergency scheduling newly encountered fentanyl analogues substance-by-substance and gives prosecutors ... an efficient tool to bring traffickers to justice.”
Unfortunately, DEA’s authority expires Feb. 6. Absent congressional action, law enforcement will be forced to return to a cumbersome, reactive process that often does not even begin until a wave of overdose deaths have occurred.
So it was good news when the Senate took the important step last week of unanimously approving S. 3201, sponsored by Sens. Lindsey Graham, Dianne Feinstein, and Dick Durbin, to extend the DEA’s scheduling authority for another 15 months while also commissioning a study to examine the impacts of class-wide scheduling.
The Senate bill is not a long-term solution, however. Working together this past summer, officials from the White House Office of National Drug Control Policy, the Department of Justice, and the Department of Health and Human Services reached an interagency solution that balances the need to control these substances as a class, with the researcher access necessary to study these substances. The proposal would schedule fentanyl analogues permanently as the dangerous drugs that they are, while also clarifying requirements related to medical research. While we believe this is the best approach in the long run, the Senate has taken a common-sense step ahead of a fast-approaching deadline. Now, the House must act.
The department’s battle against fentanyl is one part of our larger fight against the opioid crisis that has incorporated a range of aggressive steps since President Trump’s 2017 declaration of a public health emergency, including:
- Establishing the Joint Criminal Opioid Darknet Enforcement team that, on its most recent operation, shut down 50 darknet accounts and seized 299 kilos of drugs.
- Launching strike forces in regions plagued by over-prescription — including the Appalachian Regional Prescription Opioid Strike Force that has charged more than 70 individuals who are collectively responsible for distributing more than 40 million pills.
- Awarding an unprecedented $320 million in 2018 grant funding to support education, prevention, and treatment efforts in vulnerable communities.
- Prosecuting more fentanyl traffickers than ever before. From October 2018 through September 2019, more than 3,000 individuals were charged for trafficking fentanyl, more than double the number of individuals charged in the prior year.
Working in conjunction with other parts of the administration and our state, local, and tribal law enforcement partners, these and other steps helped reduce prescription opioid overdose deaths by more than 13%.
Unfortunately, deaths from synthetic opioids remain disturbingly high, and the substance driving these deaths is likely to be fentanyl and fentanyl analogues.
We’re making progress, but work remains to be done. House approval of a 15-month extension of DEA’s authority would support our fight against the opioid crisis, avoid confusion with ongoing prosecutions, and buy time for a long-term solution.
We urge members on both sides of the aisle to act this week.
Stephen E. Boyd is the assistant attorney general for legislative affairs at the U.S. Department of Justice.
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