To stem the growing opioid crisis, the U.S. Drug Enforcement Administration (DEA) in 2018 temporarily placed the synthetic opioid fentanyl and its variants in the highest legal and regulatory category, Schedule I, on par with highly addictive substances like heroin and ecstasy.
In January 2020, just before that ban was set to expire, the Senate unanimously passed the Temporary Reauthorization and Study of the Emergency Scheduling of Fentanyl Analogues Act (S. 3201), which would maintain fentanyl variants’ classification as Schedule I drugs for 15 additional months, through May 2021. The bill faced more difficulty in the House, where partisan disagreements delayed the bill. Ultimately, it passed by a vote of 320-88, with 86 Democrats dissenting. President Trump signed it into law on Feb. 6, the day the ban was originally set to expire.
Most House and Senate Republicans supported the continuation of the stricter scheduling of fentanyl variants, or analogues, in an effort to help combat America’s opioid crisis, while many Democrats questioned whether efforts should instead focus on substance abuse treatment and rehabilitation.
“There is no question that fentanyl poses an absolutely deadly threat to American lives, yet it took Democrats until the 11th hour to extend the fentanyl analogues ban,” Reps. Doug Collins (R-Ga.), ranking member of the House Judiciary Committee, and Greg Walden (R-Ore.), ranking member of the House Energy and Commerce Committee, said in a joint statement. “Thanks to pressure from patients, families, law enforcement and communities everywhere, House Democrats finally joined the Senate and House Republicans in passing the fentanyl analogues ban. We can only hope that the next time lives hang in the balance, we won’t have to wait until the last minute for Democrats to act.”
The DEA’s original action came a year after the U.S. Health and Human Services Administration declared a public health emergency in response to America’s opioid crisis, which is fueled in part by fentanyl and fentanyl analogues. The Centers for Disease Control and Prevention estimates that in 2017, synthetic opioids, including fentanyl, were involved in nearly 30,000 of the 70,000 drug overdose deaths. Due to fentanyl’s potency — it is 50 times more potent than heroin and up to 100 times more potent than morphine — the substance carries a high risk of overdose. Even a small amount can prove deadly.
The DEA’s temporary order made it easier for federal law enforcement to seize fentanyl analogues and to investigate and prosecute traffickers of these substances. Before the ban, drug producers could alter the chemical makeup of fentanyl to avoid narcotics controls.
The U.S. Department of Justice (DOJ) has voiced strong support for a continued ban on fentanyl analogues. In June 2019, DOJ representatives testified before the Senate Judiciary Committee that one of the main causes of the increase in deaths from synthetic opioids is the widespread availability of illicitly produced fentanyl-like substances, much of which can be sourced back to China.
Attorneys general in several states also back a continued ban on fentanyl analogues. “To address the crisis of opioid overdose deaths, law enforcement must have all the necessary tools at their disposal,” the U.S. Attorney’s Office in the Northern District of West Virginia, an area that has been hit hard by the opioid crisis, said in support of S.3201. “The passage of this legislation is quite literally a matter of life and death.”
Many Democrats, meanwhile, worry that the bill is too punitive without getting to the heart of the opioid epidemic. “Let’s not enact another law that sends more people to prison while ignoring the root causes of the present crisis, which is substance abuse and which should be dealt with as a public health problem,” Rep. Bobby Scott (D-Va.) said during the House debate.
The American Civil Liberties Union also objected to the bill, saying that it could disproportionately affect minority populations. “Congress is falling back into the bad habits that say criminalization and incarceration is the way out of the opioid crisis,” Kanya Bennett, American Civil Liberties Union senior legislative counsel, said in a statement. “Seventy-five percent of those sentenced in fentanyl cases are people of color, which means black and brown communities stand to lose the most under the policies Congress is currently advancing. It’s up to the House to take legitimate steps to address this public health crisis and ensure that we don’t fall back into the mandatory minimums and other trappings of the failed drug war.”
For background, see the February 2018 issue of Congressional Digest on the “Opioid Crisis” and the June 2019 Extra Topic article “Opioid Initiative.”
