Fentanyl test strips save lives, so why are they illegal in some states?

Drug overdose deaths driven by fentanyl have risen sharply over the past decade, underscoring an ongoing—and worsening—American opioid epidemic leaving a staggering loss of life in its wake.

Yet despite attempts to mitigate overdoses using fentanyl test strips, several American states still regard this proven harm-reduction strategy as an "aggravator" of the opioid epidemic, classifying the test strips as drug paraphernalia under the law.

Ophelia used data from the Legislative Analysis and Public Policy Association and the Centers for Disease Control and Prevention to explore where fentanyl and xylazine test strips remain subject to drug paraphernalia laws.

Fentanyl—the primary cause of overdose deaths involving synthetic opioids between 2015-2022, according to a National Institute on Drug Abuse analysis—is an extremely potent and widely available synthetic opioid about 100 times more potent than morphine. While serving a legitimate medical purpose under supervision from licensed medical professionals, fentanyl is a growing threat to human health and life in the illegal drug market. There, it's mixed into other drugs to increase potency or pressed into pills that otherwise appear to be legitimate prescription opioids. Just 2 mg of fentanyl can be lethal.

Public health officials have invested in test strips to identify fentanyl, a strategy that follows other harm-reduction strategies, like safe needle exchanges. Making the overdose-reversal medication naloxone (Narcan) more widely available is a similar research-backed approach to reducing drug use. Fentanyl test strips offer a low-cost way for individuals who use drugs to test and identify the materials in any water-soluble drug, which can allow them to make informed, safer decisions.

Under federal law, drug paraphernalia includes any equipment used to "produce, conceal, and consume illicit drugs." Though states vary in their application of this definition and in the consequences of possession, paraphernalia includes pipes, bongs, and cigarette papers.

The DEA classifies drugs into five schedules based on their potential for dependency and acceptable use in the medical field. Schedule I drugs include those without approved uses and high potential for abuse, such as heroin, while Schedule V drugs include those with low potential for misuse, such as codeine, commonly found in cough syrups. Fentanyl is classified as illicit under Schedule II, along with cocaine, methamphetamine, oxycodone, and Adderall.

Harm reduction emphasizes risk reduction and health promotion among people who use drugs. This community-driven approach, designed to foster incremental change toward treatment and recovery, is a cornerstone of the Department of Health and Human Services' Overdose Prevention Strategy. Harm-reduction strategies have demonstrably reduced drug usage and, in some cases, prevented the spread of disease. Syringe services programs, for instance, result in 50% fewer HIV and Hepatitis C virus cases; those who use SSPs are three times more likely to quit their choice drug owing to program referrals, according to CDC data.

Strategies enabling a person to use their choice drug safely might seem counterintuitive, and the tension between these strategies and the laws criminalizing them pushes people to secrecy. In Pennsylvania, for instance, government officials revoked $150,000 in opioid settlement money from a harm-reduction nonprofit when their owner spoke out about syringe services.

Harm-reduction strategies emerged in the wake of the punitive "War on Drugs" era after arrests and incarcerations proved an ineffective deterrent to drug use. Growing awareness that immediate abstinence is not always possible for those coping with addiction. On average, it takes approximately five attempts to overcome an alcohol or drug problem, according to a 2019 study by the Massachusetts General Hospital and Harvard Medical School.