Legislation to Increase Access to Narcotics Testing Products

July 11, 2019|10:25 a.m.| ASTHO Staff

Pharmaceutical fentanyl is a synthetic opioid pain reliever that is 50-100 times more potent than morphine and approved for treating severe pain. While pharmaceutical fentanyl can be diverted for misuse, most recent fentanyl overdose deaths involve illicitly-manufactured fentanyl (IMF), which is sold through illegal drug markets for its heroin-like effects and often mixed with heroin or cocaine with or without the user’s knowledge. Confiscations, or seizures, of fentanyl increased by nearly seven-fold from 2012 to 2014 and in 2016, the number of overdose deaths involving IMF surpassed heroin and prescription opioid deaths in the United States for the first time.

Increased mixing or co-use of fentanyl, heroin, cocaine, and fentanyl analogs can increase overdose risk due to the exposure to drugs that vary substantially in potency. One approach to address the IMF overdose crisis has been to make available drug-checking technologies, which are designed to easily identify the contents of illicit drugs, including the presence of fentanyl. Several states have sought to implement or improve overdose prevention programs and interventions by increasing the availability and accessibility of narcotics testing products, including fentanyl strips. The strips have the ability to detect the presence of fentanyl and some analogs in drug samples and can be used by a person before using the drug when he or she suspects the drug to contain fentanyl. Below is a brief overview of recent state legislative activity addressing the use, possession, and distribution of narcotics testing products.

In March 2019, Virginia’s governor signed House Bill 2563, which removes from the definition of “controlled paraphernalia” any narcotics testing products that are used to determine whether a controlled substance contains fentanyl or a fentanyl analog. The bill therefore makes it lawful to possess and distribute narcotics testing products used for this purpose.

The Massachusetts legislature introduced several bills addressing the use of narcotics testing products. House Bill 1717 would require the establishment of a three-year pilot program for the purpose of implementing and studying the efficacy, the public health impacts, and public safety outcomes of the use of fentanyl testing strips by individuals addicted to opioids and other substances. The pilot program would enable the use of fentanyl strips by police, service providers, individuals dependent on drugs, and others to support the creation of rapid response systems and public health warnings to reduce the incidence of overdose deaths. House Bill 3313 would allow any person to provide, administer, or utilize a narcotics testing product to assist another person in determining whether a narcotic or substance contains chemicals, toxic substances, or hazardous compounds without being subject to civil liability or criminal prosecution. The bills specifically includes fentanyl testing strips within the definition of narcotics testing products. A similar good Samaritan bill (Senate Bill 904) would allow a person acting in good faith to provide, administer, or utilize a narcotic testing product without being charged or prosecuted for possession of a controlled substance if evidence was gained as a result of providing, administering, or utilizing the product to provide assistance to another person.

Narcotics testing products have the potential to combat the overdose crisis affecting communities across the United States. State health officials play an important role in exploring, advocating for, and implementing prevention programs or policies that make these products legally available to those most at risk for overdose and those who interact with or treat these individuals. ASTHO will continue to monitor legislative activity on this important public health issue.