U.S. Senate Temporarily Extends Schedule I Status for Fentanyl Analogues

The Senate Votes to Maintain Schedule I Classification for Fentanyl Analogues

On January 16, the United States Senate unanimously passed the Temporary Reauthorization and Study of the Emergency Scheduling of Fentanyl Analogues Act. The bill is now pending approval in the House of Representatives. The Act extends the status of fentanyl analogues as Schedule I controlled substances under federal law until May 6, 2021.

Without intervention from Congress, a temporary scheduling order for fentanyl analogues that the Drug Enforcement Agency (DEA) implemented in 2018 will expire next month, rendering a variety of opioids suddenly legal and unregulated. The bill won the approval of Senators as a short-term compromise after several unsuccessful attempts at amending the Controlled Substances Act to permanently schedule fentanyl analogues.

What Are Fentanyl Analogues?

Fentanyl is a powerful and highly addictive synthetic opioid as well as a Schedule II controlled substance, a drug the federal government considers to have medical utility while posing significant risks for abuse, dependence, and overdose. As such, fentanyl is an ingredient in some legal prescription medications for severe pain, but the drug is otherwise illegal to use, possess, manufacture, or distribute.

In chemistry, an analogue is a compound which shares structural similarities with another compound. Since the advent of fentanyl in 1960, chemists have synthesized hundreds of fentanyl analogues. Some fentanyl analogues are even more potent than fentanyl itself, and they have caused thousands of fatal overdoses over the course of the Opioid Epidemic.

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Fentanyl Analogues under Federal Law

In 1986, Congress passed the Federal Analogue Act to authorize the DEA to ban or restrict access to analogues of Schedule I and Schedule II controlled substances. The Act also allows the DEA to temporarily classify such analogues as Schedule I controlled substances in the Federal Register to protect public health as the agency evaluates the analogue and waits for the Department of Health and Human Services to issue a recommendation for permanent scheduling.

From 2011 to 2018, the DEA temporarily classified 17 fentanyl analogues as Schedule I controlled substances, which are illegal to use or possess for any reason. In 2018, in response to a concurrent surge in the development of new fentanyl analogues and the incidence of opioid overdoses, the DEA classified all fentanyl analogues as Schedule I controlled substances. The invention and proliferation of fentanyl analogues has halted as a result of the temporary scheduling order. Most fentanyl analogues originated in China, by far the predominant source of America’s fentanyl supply.

Support for the Temporary Reauthorization

The Justice Department and most Republican Senators support extending Schedule I status for fentanyl analogues. Last year, Sen. Mitch McConnell (R-KY) introduced the Stopping Overdoses of Fentanyl Analogues (SOFA) Act and Sen. Rob Portman (R-OH) introduced the Federal Initiative to Guarantee Health by Targeting (FIGHT) Fentanyl Act. Both bills would permanently schedule fentanyl analogues, but neither the SOFA Act nor the FIGHT Act have passed the Senate.

Notably, the FIGHT Act enjoys bipartisan support from the Attorney-General of every state, the District of Columbia, and all five inhabited territories. More recently, the U.S. Attorneys for Vermont, Rhode Island, Massachusetts, New Hampshire, Maine, and Connecticut jointly asked Congress to extend or codify the DEA’s temporary scheduling order. In a January 16 statement, Sen. Portman praised the passage of the Temporary Reauthorization as “a vital step in our efforts to keep fentanyl out of our communities,” but he vowed to continue to advocate for his bill.

Opposition to Schedule I Classification

Sen. Dianne Feinstein (D-CA), a senior Democrat, co-sponsored the Temporary Reauthorization. “This bill isn’t a permanent solution, but I’m confident it will give us time to find a commonsense, bipartisan pathway to develop meaningful solutions to the overdose crisis,” she said.

Some Democrats oppose measures to classify fentanyl analogues as Schedule I controlled substances for fear of perpetuating the War on Drugs. In a recent statement, the ACLU and the Drug Policy Alliance echoed the Democrats’ position: “We continue to have serious concerns that granting the Drug Enforcement Administration class-wide scheduling authority for fentanyl analogues will exacerbate already disturbing trends in federal drug prosecutions and incarceration levels.”

Other opponents of the Temporary Reauthorization have raised concerns about the barriers a Schedule I classification imposes on scientific research. With the Democrats in control of the House of Representatives, the fate of the Temporary Reauthorization remains uncertain.

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