Why fentanyl policy in the U.S. is such a mess (and why we need to do more to fix it)

Keep up with the latest news on laws regarding fentanyl to find out what state and federal legislators are - and aren’t - doing to keep people safe.

Ophelia team
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Fact checked by
Arthur Robin Williams, MD

Fentanyl has been in the news for ages, but it’s time to put a spotlight on this lethal, addictive drug and talk about what state and federal legislators are—and aren’t—doing to keep people safe. Leaders claim to understand the problem, but policy changes are slow, uneven, and sometimes contradictory. We have to talk about some recent state-level actions and national conversations to better understand what the U.S. is doing about the rise of fentanyl-related overdose deaths and how much further we have to go. 

What’s at stake?

Fentanyl is found in all 50 states and is a major contributor to the nation’s current opioid crisis. Overdose deaths involving synthetic opioids, including fentanyl, increased by more than 56% between 2019 and 2020. This frightening increase continued into 2021, with more than 70,000 overdose deaths involving synthetic opioids reported. 

Legislation in the U.S. needs to catch up to the reality of opioid—and specifically fentanyl—overdoses. Otherwise, these numbers will continue to get worse. As DEA Administrator Anne Milgram put it, “Fentanyl is killing Americans at an unprecedented rate.”

What are the states doing about fentanyl?

Each state has its own laws regarding fentanyl and related products, such as fentanyl test strips. Even though the strips are designed to help people identify and avoid fentanyl-laced drugs, some states consider them drug paraphernalia that can facilitate use and make them illegal. But that only makes it harder for already-vulnerable people to protect themselves.  

What does this legislative patchwork look like? Here are just a few states where leaders are talking fentanyl policy without taking clear action or enacting policies that create new problems:

  • Texas: Under the state’s fentanyl law, manufacturing or delivering fentanyl is a criminal offense. Fentanyl test strips are still currently illegal, but—in a reversal of his previous position—Governor Greg Abbott has come out in favor of legalizing them
  • South Carolina: There is currently no state law against fentanyl tracking, but some lawmakers are pushing to establish minimum penalties for this offense. 
  • Colorado: Governor Jared Polis signed into law the Fentanyl Accountability and Prevention Bill, which lowers the threshold for a fentanyl possession charge to one gram, meaning more people are likely to face legal trouble. To the state’s credit, fentanyl test strips are legal and available for free in some cities. 

The good news is that there are states moving forward in meaningful ways:

  • Pennsylvania: Fentanyl test strips are legal and no longer considered drug paraphernalia in Pennsylvania after House Bill 1393 amended the Controlled Substance, Drug, Device and Cosmetic Act of 1972. 
  • Illinois: State House Bill 4556 expands access for healthcare professionals to distribute fentanyl test strips
  • California: Assembly Bill 1598 made fentanyl strips legal in California, and new legislation may require schools in the state to stock emergency naloxone, a drug meant to rapidly reverse an opioid overdose. 
  • Tennessee: Public Chapter 749 contains a number of provisions that help communities and health leaders tackle the fentanyl crisis. Naloxone is available through pharmacists, making it more accessible to individuals and advocacy groups, and healthcare providers will need to prescribe it alongside most opioids. Additionally, fentanyl test strips will be easier to get.

As these examples show, state laws on fentanyl and life-saving tools are all over the place. The wide range creates confusion for individuals who might be traveling between states and frustration for activists pushing for more consistent, informed fentanyl policies that will save people’s lives. 

Where’s the federal government in all this?

Fentanyl test strip purchases and distribution are often at the center of federal debate. Health experts and advocates argue that funding and distributing fentanyl test strips are essential harm-reduction practices that could reduce overdose deaths. Other public figures argue that purchasing the test strips with government funds—or even simply legalizing them—effectively condones drug use. 

What this second group fails to recognize is that millions of Americans are already using or dependent on opioids and at risk of overdose. Interventions like making fentanyl test strips available and affordable can reduce overdose risk and prevent deaths.  

Often, overdose victims don’t even know that they’re ingesting fentanyl and putting their lives in danger doing so. For those individuals, a fentanyl test strip could mean the difference between a lethal overdose and living another day. 

Unfortunately, this debate rages on, and the current state-by-state patchwork approach to fentanyl legislation isn’t good enough. When test strips are freely available in one state and prohibited in another, some people dealing with opioid dependency are left hanging. Why isn’t everyone getting access to life-saving resources? Why are we still getting bogged down by debates about morality when opioid use disorder is a health issue? 

As Jessica Rigsby, Ophelia’s VP of Legal and Compliance, explains, “Treating fentanyl strips as criminal paraphernalia only preserves the antiquated legal and moral approach to a condition we've long known to be medical. Medicine, not judgment, is the key to OUD treatment. Any harm reduction measures that keep OUD patients alive long enough to get care should be not just decriminalized, but made widely and cost effectively available.”

The conversation moved forward  in 2021 when the Centers for Disease Control and Prevention (CDC) and the Substance Abuse and Mental Health Services Administration (SAMHSA) announced that grant recipients can use federal funding to purchase fentanyl test strips, meaning community organizations can put supplies into the hands of people with opioid use disorder. Finally, a major nationwide step toward addressing OUD and preventing overdoses. 

Harm reduction programs, like syringe exchanges, have made fentanyl test strips more available in certain places. But additional action is needed to make buying the strips and distributing them to vulnerable communities more commonplace. 

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