Washington, DC — Today, civil rights groups and policy experts welcomed the announcement of the Temporary Emergency Scheduling and Testing of Fentanyl Analogues (TEST) Act by U.S. Sen. Cory Booker (D–NJ). The bill would require the federal government to test fentanyl-related substances (FRS) that are currently classified as Schedule I substances and for the Attorney General to delist those that are not harmful. It also requires the Attorney General to place into a lower schedule any FRS that has a “potential for abuse” that is less than the drugs or other substances in Schedules I and II.
“Temporary scheduling alone is a failed experiment that hasn’t curbed the devastation the opioid crisis has brought on countless families in the United States. So it isn’t enough to just extend the class-wide scheduling of fentanyl analogues again and hope for a different result,” said Senator Booker. “Temporary scheduling has also preemptively criminalized potentially life-saving antidotes to fentanyl overdoses and impeded the medical, research, and scientific community’s ability to develop the solutions we need to effectively tackle this crisis.
“A better approach driven by data, science, and medicine will save lives. My common-sense legislation supported by a broad spectrum of groups working to end the opioid crisis will extend temporary scheduling for two years while also requiring the same scientific evaluation of fentanyl analogues as other controlled substances, so we can understand their pharmacological effect and open up new, promising avenues to developing therapies that can combat addiction and the devastation it causes,” continued Senator Booker.
“Designating a class of substances as Schedule I before testing those substances for harm is unprecedented — and for good reason,” said Maritza Perez, Director of the Office of Federal Affairs at Drug Policy Alliance. “Without testing, the federal government can unilaterally impose restrictions on any substance it wants, regardless of whether or not it is actually harmful, leading to unjust criminal convictions and impeding research into potentially life-saving treatments. Sen. Booker’s TEST Act is a necessary step for our country to address the overdose epidemic with science and compassion instead of fear and stigma.”
“The R Street Institute supports the TEST Act of 2022, introduced by Sen. Cory Booker (D-N.J.). This proposed legislation represents a pragmatic approach to understanding the effects of fentanyl-related substances, including their potential medical use, and avoids setting a dangerous precedent for permanent classwide scheduling that has implications for the health and safety of our nation. We hope that members from both sides of the aisle will embrace a science-based approach to drug scheduling,” said Mazen Saleh, Policy Director, Integrated Harm Reduction at R Street Institute.
“For years we’ve taken an aggressive enforcement-based approach to the overdose crisis, and it has failed,” said Diane Goldstein, Executive Director of Law Enforcement Action Project. “The indiscriminate scheduling of fentanyl-related substances will only hinder our ability to save lives, broadly criminalizing people who use drugs and preventing research into substances that may have potential medical applications. The TEST Act is an important step toward fighting the overdose crisis with an approach that is driven by public health, not punishment.”
“The overdose crisis is a public health crisis, and public health crises demand solutions that are rooted in public health best practices. The TEST Act is a testament to this and to the benefits of informing drug scheduling decisions based on evidence and not emotion. Studying the effects of emerging fentanyl analogues provides us with the opportunity to understand more about this class of drugs and potentially sets us on a path to new and transformative public health interventions. The only path that blanket scheduling of fentanyl analogues sends us down is the one that leads towards more of the same punitive drug policies that have already destroyed millions of lives,” said Drew Gibson, Director of Advocacy at AIDS United.
“We cannot prevent overdoses and save lives through harsh punishments and automatic criminalization,” said Marta Nelson, director of government strategy for Advocacy and Partnerships, at the Vera Institute of Justice. “This is a public health emergency, and we must focus on fully understanding the damaging impact of all fentanyl-related substances. Only by investing in science and compassion can we develop commonsense solutions to this ongoing crisis.”
“The TEST Act will bring some sanity into the drug scheduling process. Authorities should
not be able to put substances on Schedule I, the most serious classification carrying the harshest penalties, without first determining that they are harmful, which they are able to do now with the temporary FRS scheduling policy in place, said Laura Pitter, Deputy Director of the US Program at Human Rights Watch. “The TEST Act is not the cure for all that ails US drug policy, but it is an important improvement to at least one key aspect of it.”
In 2018, the Trump administration temporarily classified all fentanyl-related substances, known and unknown, as Schedule I, a designation that virtually prohibits scientific research and imposes harsh criminal sentences. The federal government has identified roughly 44 FRS and tested 25 for therapeutic use — one of which was confirmed by the National Institute on Drug Abuse to act similarly to naloxone — but has so far refused to make those results public, commit to testing additional fentanyl analogues, or establish a process to reduce criminal punishments.
In the midst of the largest overdose crisis the U.S. has ever seen, the TEST Act would prioritize saving lives over harsh criminal punishments. Specifically, the bill would:
- Authorize appropriations to the Secretary of Health and Human Services to conduct testing;
- Require the Department of Justice (DOJ) to publish—within 90 days of enactment results— all fentanyl-related substances that have already been encountered and evaluated;
- Require DOJ to evaluate the FRS that it has encountered but not yet evaluated.
- Establish a pathway for the Attorney General to delist FRS that do not have potential for abuse by removing them from Schedule I;
- Establish a pathway for the Attorney General to place into a lower schedule any FRS that has a potential for abuse that is less than the drugs or other substances in schedules I and II;
- Eliminate the costly and complex restrictions on future research into FRS;
- Require the Attorney General to notify any person who has been convicted or sentenced for an offense related to a FRS that is subsequently removed from the schedules or rescheduled to a lower schedule that carries a lower criminal penalty of the change;
- Extend the emergency scheduling of fentanyl-related substances for 2 years after enactment to give time for testing.
The full text of the bill is available here.
More information on the need to test FRS is available here.
An online version of this release is available here.
###
About the Drug Policy Alliance – The Drug Policy Alliance envisions a just society in which the use and regulation of drugs are grounded in science, compassion, health and human rights, in which people are no longer punished for what they put into their own bodies but only for crimes committed against others, and in which the fears, prejudices and punitive prohibitions of today are no more.
About Human Rights Watch – Human Rights Watch is an international non-governmental organization that monitors human rights violations in more than 90 countries, including the United States. We investigate abuses, expose the facts related to those abuses, and advocate that those with power respect rights and secure justice. www.hrw.org
About the Vera Institute of Justice – The Vera Institute of Justice is powered by hundreds of advocates, researchers, and activists working to transform the criminal legal and immigration systems until they’re fair for all. Founded in 1961 to advocate for alternatives to money bail in New York City, Vera is now a national organization that partners with impacted communities and government leaders for change. We develop just, antiracist solutions so that money doesn’t determine freedom; fewer people are in jails, prisons, and immigration detention; and everyone is treated with dignity. Vera’s headquarters is in Brooklyn, New York, with offices in Washington, DC, New Orleans, and Los Angeles.
About R Street Institute – The R Street Institute is a nonprofit, nonpartisan, public policy research organization. Our mission is to engage in policy research and outreach to promote free markets and limited, effective government.
About The Law Enforcement Action Partnership (LEAP) – The Law Enforcement Action Partnership (LEAP) is a nonprofit group of police, judges, and other law enforcement professionals who support evidence-based policies that improve public safety and police-community relations to make our communities safer and more just.
About AIDS United – AIDS United’s mission is to end the HIV epidemic in the U.S. through strategic grant-making, capacity building and policy. AIDS United works to ensure access to life-saving HIV care and prevention services and to advance sound HIV-related policy for populations and communities most impacted by the U.S. epidemic. As of January 2021, our strategic grant-making initiatives have directly funded more than $118 million to local communities, and we have leveraged more than $184 million in additional investments for programs that include, but are not limited to, syringe access, access to care, capacity-building, HIV prevention and advocacy.
