Nothing has made the nation’s addiction epidemic more deadly than fentanyl’s infiltration of the drug supply. Yet in more than a dozen states, tools used to detect the ultra-potent synthetic opioid are still classified as drug paraphernalia — making it a crime to possess or distribute them.
The practice of “drug-checking” — essentially, testing illicit drugs to see if they contain unknown toxins — has remained controversial even as the crisis of fentanyl deaths has attracted national attention. And while some states have moved to broaden access to drug-checking tools, others, including Texas and Florida, have maintained a hardline stance, arguing that they only serve to facilitate drug use.
Advocates argue the continued bans on fentanyl test strips, in particular, have only worsened the crisis and further marginalized drug users.
“With limitations on drug-checking mechanisms, really what we’re saying is: People who use drugs don’t deserve to live, and we don’t believe that they care about their health,” said Hill Brown, the southern director for Faith in Harm Reduction, a nonprofit that facilitates partnerships between religious groups and organizations that provide drug users with tools for safer use. “Both of those things are wrong, and the first argument is just immoral.”
The debate highlights a fundamental divide in U.S. drug policy. Conservatives, including law-enforcement officials, have long argued that tools used to test substances effectively condone drug use. Many health officials, researchers, and harm-reduction advocates, however, say that attitude misses an obvious reality: For millions of Americans battling addiction, quitting cold turkey is simply not an option.
To save lives in the short term, they argue, every possible tool should be made available, including test strips that can help detect the presence of fentanyl in heroin, methamphetamine, cocaine, and other drugs.
“It’s really frustrating that in 2022, we still have these laws on the books,” said Corey Davis, an attorney and the director of the Harm Reduction Law Project. “Everybody agrees they have the result of reducing the health of people who use drugs. It leads to preventable blood-borne disease, endocarditis, which we all end up paying for — it ends up being a very destructive and expensive way of punishing people.”
Fentanyl test strips are only about a decade old. During that same stretch, fentanyl began to seep into the U.S. supply of illicit drugs, particularly heroin.
While there’s little data about the tests’ effect on overdose rates, research shows that people using drugs often alter their behavior if they detect fentanyl using a test strip — in many cases, they opt not to use a particular batch of heroin, use smaller doses, use in the company of others, or acquire naloxone, the overdose-reversal medication.
Test strips are one of many tools that fall under the broad category of “harm reduction” — policies that concede it’s impractical to demand instant abstinence, and instead aim to reduce overdose, disease transmission, and death among people who use drugs.
Many of the strategies remain controversial: Indiana and West Virginia have moved in recent years to curtail syringe exchanges. Last month, California Gov. Gavin Newsom (D) vetoed a bill that would have allowed supervised consumption, a practice by which people use drugs under medical supervision, allowing quick overdose reversal.
Fentanyl test strips remain particularly controversial. While the White House endorsed their use in early 2021, just months after President Biden took power, they remained illegal in a majority of states. In the past year, numerous states have moved to legalize them, including some conservative strongholds like Alabama, Louisiana, and Tennessee.
They remain illegal in 19 states, however, many of which are in the South — in most cases, thanks to a bill that most states passed in the late 1970s at the urging of the Drug Enforcement Administration. The law criminalized drug paraphernalia, and included devices that test the contents of illicit substances in that category.
Efforts to change the law fizzled in Florida and Kansas this year. The test strips also remain illegal in Texas, as well as several other states.
Police rarely arrest individuals on a lone charge of possessing or distributing test strips.
But advocates say such laws have a broad impact.
“We’ve heard of people who’ve been stopped with other paraphernalia on them or with drugs on them, and they got an extra charge for possession of paraphernalia tacked on for the test strip,” Davis said.
Moreover, he said, the laws have a “chilling effect”: Organizations in states where test strips are illegal often refrain from distributing them for fear of losing grant funding or putting community members in legal jeopardy.
“One of the challenges when the materials you’re trying to distribute are in a legal gray area is that you don’t want to put your staff or your status as an organization at risk,” said Sheila Vakharia, the deputy director for research and academic engagement at the Drug Policy Alliance, a nonprofit that advocates for harm reduction services and decriminalizing drug use. “And you don’t want to deter clients from actually picking up the supplies you’re giving them.”
Test strips still face major obstacles even in states where they are legal. For one, they cost roughly $1 each — an amount that adds up quickly for people who use drugs daily, or for organizations supplying large communities.
Some harm reduction advocates have also begun to question their utility. Fentanyl is so widespread, they argue, that anybody buying heroin anywhere in the U.S. should expect it to contain fentanyl.
The question, instead, is how much fentanyl particular substances contain. Since test strips only provide a yes-or-no answer, they’re unlikely to be useful to regular drug users.
“The utility of fentanyl test strips is becoming a little complicated,” Vakharia said. “Fentanyl has been here for a while, and people have started gradually developing slight degrees of tolerance to it. In some markets, buying heroin is synonymous with buying fentanyl — you cannot avoid fentanyl even if you try.”
Still, advocates say there’s still immense value in the test strips for people who use drugs more occasionally, or people who use substances other than heroin.
“Who’s missing out is your casual user, your weekend warrior, folks who are going to [electronic dance music] festivals and buying an amphetamine or MDMA to use, and maybe are buying opioids to come down,” said Tim Santamour, the director of outreach and networking for the Florida Harm Reduction Collective. “Those are the folks that are pretty high-risk for overdose, because they’re not as savvy as chronic or chaotic users, so they don’t expect there to be fentanyl.”
Santamour also advocated for use of more advanced reagent kits used to test for substances other than fentanyl. Those kits, which are available online, are also illegal in Florida.
Given fentanyl’s near-universal presence, a small handful of cities has acquired more advanced tools for checking the drug supply. In New York, for instance, the public health department bought a spectrometer that can not only identify whether fentanyl is present in a substance but also estimate how much.
This article was supported by a grant from Bloomberg Philanthropies.
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