The Morning Journal (Lorain, OH)
10K deaths mean more help needed
Emergency classification for fentanyl analogues set to expire Feb. 6, but Congress could pass extension or make drug classification permanent
Lake County Crime Lab officials said in 2019 they continued to identify new synthetic opioids and fentanyl analogs that they never saw in the county before.
Fentanyl and its analogues contributed to more than 10,000 overdose deaths in Ohio between 2014 and 2018, according to the Ohio Department of Health.
In February 2018, the U.S. Drug Enforcement Agency took an emergency step against fentanyl analogues, making them Schedule
I drugs, placing them in the same category as drugs like heroin and ecstasy. That emergency scheduling is slated to expire Feb. 6, leaving it in Congress’ hands to determine whether to extend or make permanent the emergency scheduling or let it expire.
U.S. Attorney General for the Northern District of Ohio Justin Herdman is among those who want the DEA’s designation made permanent.
Herdman called the DEA’s emergency scheduling of the analogues a “critical step for federal law enforcement, as it allowed us to pursue criminal prosecutions for those selling fentanyl analogues that, while having the same deadly consequences as fentanyl, were still legal because of their slight chemical distinction.”
“Prior to the emergency order, for instance, charging a drug dealer with selling analogues like acetylfentanyl or furanylfentanyl, which pose as great a risk to public safety as fentanyl, was a laborious process fraught with legal pitfalls,” Herdman wrote in an opinion piece that appeared in the Canton Repository.
The U.S. Department of Justice also wants to see the emergency scheduling made permanent.
“The lethality of fentanyl is virtually unmatched,” DOJ officials said in a June 2019 Senate Judiciary Committee hearing. “It is 30 to 50 times more potent than heroin, which is quite lethal in its own right. That unmatched lethality is not reflected in sentencing ranges for fentanyl trafficking, which punish dealers of fentanyl and fentanyl-like substances less severely than sellers of less lethal drugs.”
Fentanyl was first introduced more than 50 years ago and was approved for treating severe pain in the early 1990s, typically for advanced cancer patients.
It’s since become a more commonly prescribed painkiller. U.S. doctors wrote 6.65 million fentanyl prescriptions in 2014. The vast majority of the fentanyl and analogues contributing to overdose deaths in the United States comes from outside the country, according to the DEA.
“Due to their high potential for abuse, fentanyl and various fentanyl-like substances were controlled in Schedule I or Schedule II of the Controlled Substances Act (CSA) on a substanceby-substance basis,” DOJ officials told the Senate committee. “Unfortunately, clandestine chemists have with relative ease created new synthetic variations of fentanyl by introducing minor structural modifications, resulting in new, non-controlled fentanyl-like substances. These substances are specifically engineered to skirt U.S. law.”
The DOJ officials said the emergency scheduling has made it “easier for federal agents to seize fentanyllike substances and, investigate traffickers of these substances, and for prosecutors to prosecute such traffickers.”
The Senate on Jan. 16 passed legislation that extends the emergency scheduling for another 18 months, until May 6, 2021. The bill now moves on to the House of Representatives for further consideration. The House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security will have a hearing on the subject Jan. 28.
Sen. Rob Portman, R-Ohio, said in a statement the extension was a “compromise” but was pleased with its passage.
“However, we must take action to criminalize these drugs permanently,” Portman said. “Fentanyl knows no zip code and is devastating individuals and families in Ohio and all across the country. This is a vital step in our efforts to keep fentanyl out of our communities so that law enforcement can keep these dangerous synthetic opioids out of our communities.”
Portman and West Virginia Democrat Sen. Joe Manchin last year introduced a bill that would make the Schedule I designation permanent. The bill has been endorsed by all state and territorial attorneys general.
According to Sen. Sherrod Brown’s office, D-Ohio, the senate’s unanimous support of the DEA classification extension comes while the Government Accountability Office puts together a report on the classification to “inform future policy in this space.”
“We know all too well the toll fentanyl has taken on our state,” Brown said. “That’s why I continue working with local partners and colleagues in congress to keep this dangerous drug out of Ohio and provide Ohio communities the resources they need as they continue to work to address the addiction crisis that continues to grip our state.”
Included in that work is the Fentanyl Sanctions Act, which was enacted late last year. According to his office, the bill gives U.S. officials “new sanction tools to target foreign opioid traffickers in China, Mexico and other countries.”
His office added the bill will also “better enable U.S. diplomats and law enforcement officials to maintain pressure on the Chinese government to implement and strictly enforce China’s commitment to treat all forms of illicit fentanyl as illegal.”
Concerns over longterm scheduling
In July, nearly 50 organizations signed a letter sent to Senate Judiciary Committee leaders asking them not to extend the DEA’s order. Among the organizations who signed the letter were the ACLU, the Drug Policy Alliance and the NAACP.
“We believe the (Senate Judiciary) Committee is right to be concerned about fentanyl-related deaths, but this approach merely repeats the mistakes of the past by exacerbating our incarceration problem,” the organizations wrote in the letter. “The committee should move away from the belief that increased enforcement powers for the DEA will translate into reduced overdose deaths. Instead, the committee should embrace public health approaches to the overdose crisis.”
The coalition of opposing organizations pointed to testimony DOJ officials made to the committee in June. The officials stated that if the DEA’s emergency scheduling lapses, cases would revert to being prosecuted under the Controlled Substance Analogue Enforcement Act of 1986.
The DOJ officials stated that under the Analogue Enforcement Act, several elements of proof are “presumed, or simply not relevant to routine controlled substance prosecutions.”
Under that law prosecutors must prove that the substance involved in the case was “intended for human consumption.” They also must prove that the substance is a “controlled substance analogue.” That requires proof that it has a “substantially similar chemical structure as a Schedule I or II controlled substance” (in this case fentanyl) and that it either has a substantially similar effect on the central nervous system as a Schedule
I or II controlled substance, or “in a particular case, was intended or represented as having such an effect.”
The coalition of opposing organizations wrote that the DOJ’s testimony shows there is a mechanism by “which DOJ and DEA can prosecute unscheduled fentanyl analogues.
“And though the government regards these elements as a mere speed bump to quickly securing convictions and lengthy sentences, they exist for a reason: it is impossible to tell from a substance’s chemical structure alone whether it would have any effect on the central nervous system, let alone a ‘substantially similar’ effect as a controlled substance analogue,” the groups wrote.
Another concern is the public health impact of a long-term Schedule I designation. In July, eight Democratic U.S. Senators sent a letter to Health and Human Services Alex Azar with concerns that public health agencies were not being “adequately consulted regarding the scheduling.”
The group included Kamala Harris of California, Amy Klobuchar of Minnesota and Cory Booker of New Jersey.
“We are concerned that the failure to engage necessary health experts vests far too much authority to a lawenforcement agency and may result in action that will deter valid, critical medical research aimed at responses to the opioid crisis, including efforts to identify antidotes to fentanyl-analogue overdoses and improved treatment options,” the senators wrote. “We are also concerned that by sweeping a broad set of substances onto Schedule I, with no scientific consultation, we risk erecting unnecessary research barriers to drugs that may have great potential to society, and criminalizing substances that have no psychotropic effects.”
The senators’ letter came days after Reuters reported an expert from HHS National Institute on Drug Abuse “quietly warned Senate staff at a private June 20 briefing that permanently placing all fentanyl analogues into Schedule I poses problems.”
The NIDA expert told Reuters making the drugs Schedule I long term would make it harder for researchers to win approval to study the analogues to potentially develop new approaches to fighting the opioid epidemic.
HHS spokesperson told the outlet at the time that the department did not have a position on the scheduling but acknowledged the department did have concerns. The spokesperson said the analogs could be used to develop and test new medications for preventing opioid addiction and overdoses as well as slowing down valuable research.