Why Not Legalize All Drug Testing Equipment?

Jeffrey A. Singer

This June, Rep. Sheila Jackson‐​Lee (D‑TX) and more than 40 co‐​sponsors introduced H.R.4272, the “Stop Fentanyl Now Act.” The bill essentially directs funding for the Secretary of Health and Human Services to develop programs to “provide outreach and awareness to the dangers of fentanyl” and enhances grants for “treatment and recovery services.” It also increases penalties and fines for certain drug‐​related crimes.

While most of the proposal offers nothing new, Section 8 represents a welcome attempt to chip away at federal drug paraphernalia laws that undermine harm reduction.

The title of Section 8 is “Exclusion Of Fentanyl Drug Testing Equipment From Treatment As ‘Drug Paraphernalia.’” The bill would amend Section 422 of the Controlled Substances Act (21 U.S.C. Section 863) that prohibits the interstate sale or transport of “drug paraphernalia.” Section 422(d) defines “drug paraphernalia” and provides a list of examples. Section 422(f) lists exemptions.

This is the current language of Section 422(f):

(f) Exemptions

This section shall not apply to—

(1) any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items; or

(2) any item that, in the normal lawful course of business, is imported, exported, transported, or sold through the mail or by any other means, and traditionally intended for use with tobacco products, including any pipe, paper, or accessory.

H.R. 4272 would add to Section 422(f):

(3) the possession, sale, or purchase of fentanyl drug testing equipment, including fentanyl test strips.

A week before Rep. Jackson‐​Lee introduced this bill, Rep. Jasmine Crockett (D‑TX) introduced H.R. 3563, called the STRIP Act. The STRIP Act clarifies in statute that “fentanyl drug testing equipment including fentanyl test strips” shall be excluded from the list of federally prohibited drug paraphernalia.

While both bills provide a welcome change to federal drug paraphernalia law, their wording is too narrow. As I explained to Rep. Jackson‐​Lee and her colleagues on the House Judiciary Committee Subcommittee on Crime and Government Surveillance last March:

[F]entanyl is just the latest manifestation of what drug policy analysts call “the iron law of prohibition.”1A variant of what economists call the Alchian‐​Allen Effect, the shorthand version of the iron law states, “The harder the law enforcement, the harder the drug.” Enforcing prohibition incentivizes those who market prohibited substances to develop more potent forms that are easier to smuggle in smaller sizes and can be subdivided into more units to sell… The iron law of prohibition is why cannabis THC concentration has grown over the years. It is what brought crack cocaine into the cocaine market. And it made fentanyl replace heroin as the primary cause of overdose deaths in the United States… The iron law of prohibition cannot be repealed. Already we have been getting troubling reports of the veterinary tranquilizer xylazine—drug users call it “tranq”—becoming an additive to fentanyl and other illicit narcotics. This tranquilizer greatly potentiates opioids’ effects, producing more powerful “highs.” Adding this potentiator again enables illicit opioids to be smuggled in smaller sizes and subdivided into more units to sell… What makes xylazine more deadly is that it is not an opioid, and overdoses from it that cause people to stop breathing cannot be reversed with naloxone.

Fortunately, the company that manufactures fentanyl test strips now makes xylazine test strips. But neither the STRIP Act nor the Stop Fentanyl Now Act excludes xylazine test strips from Section 422.

I also warned Subcommittee members that the iron law of prohibition is responsible for the recent appearance of a new, more potent category of synthetic opioids called nitazenes. There are not yet any test kits for nitazene. Let’s hope medical device manufacturers come up with them soon.

In a blog post about the STRIP Act, I wrote, “As long as policymakers persist in prosecuting America’s longest war, the war on drugs, the iron law of prohibition guarantees there will always be a new and more potent drug to wage war against.”

Here’s a suggestion for lawmakers: exempt any drug testing equipment from drug paraphernalia laws. Better yet, repeal drug paraphernalia laws altogether.