Over the past decade, fentanyl that is made and distributed illegally has been increasingly found in the drug supply across the United States, contributing to significant increases in drug overdose deaths. According to the National Institute on Drug Abuse1, more than 106,000 persons in the United States died from drug-involved overdose in 2021, more than double the 52,404 deaths recorded in 2015. The U.S. Centers for Disease Control and Prevention (CDC)2 reports that more than 150 people die every day from overdoses related to synthetic opioids such as fentanyl. To address this issue, states introduced more than 600 bills during the 2023 legislative session and enacted at least 103 laws with fentanyl-related provisions3.
Because fentanyl is nearly undetectable when combined with other drugs, fentanyl test strips are one tool that can help identify the substance in other drugs. While fentanyl test strips have often been included in states’ criminal statutes on drug paraphernalia, many state legislatures have enacted exclusions in recent years to make fentanyl test strips legally available for distribution.
This memorandum provides more information on fentanyl and fentanyl test strips, including recent research, federal actions, and state legislation.
Fentanyl
According to the U.S. Drug Enforcement Administration (DEA), pharmaceutical fentanyl is a synthetic opioid medication developed for pain management and approved by the U.S. Food and Drug Administration for pain relief and anesthetic uses. First developed in 1959, it is approximately 100 times more potent than morphine and 50 times more potent than heroin.
From 2011 through 2018, fatal overdoses associated with abuse of clandestinely produced fentanyl and fentanyl analogues increased markedly. According to the National Forensic Laboratory Information System, reports on fentanyl (both pharmaceutical and clandestinely produced) increased from 5,400 in 2014 to more than 56,000 in 2017, as reported by federal, state, and local forensic laboratories in the United States.
In April 2022, the DEA sent a letter to federal, state, and local law enforcement officials warning of a nationwide spike in fentanyl-related mass-overdose events. Between October 2020 and October 2021, more than 105,000 Americans died of drug overdoses, and more than 66.0 percent of those deaths were related to fentanyl and other synthetic opioids.
Fentanyl Test Strips
Fentanyl test strips (FTS), a form of inexpensive drug testing technology originally developed for urinalysis, have been shown to be effective at detecting the presence of fentanyl in drug samples.
To use FTS, testers dissolve a small amount of the drug to be tested in water and dip the test strip into the liquid for 15 seconds. The test strip registers results within 5 minutes; usually, one line indicates fentanyl is present and two lines indicate a negative result. FTS are inexpensive, typically costing around $1 each for a single test strip. Some organizations provide free FTS to individuals through their harm reduction programs. For example, in October 2022, the Wisconsin Department of Health announced4 a partnership among tribal nation health clinics, county health and human services departments, county and municipal health departments, and other organizations to distribute FTS throughout the state at no cost to individuals.
FTS Research and Federal Actions to Address Fentanyl
A 2017 study conducted by the Drug Overdose Prevention and Education Project in San Francisco, with a report published in February 2018, concluded that FTS are a useful tool for harm reduction while also raising some considerations: FTS are not an effective tool for systematically documenting the presence of fentanyl in the drug supply, they can produce false positive results, and they do not provide any information about the percentages of fentanyl in drugs or detect the presence of any other drugs5.
A 2018 study conducted by researchers at Brown University, Boston Medical Center, and Johns Hopkins University in collaboration with law enforcement agencies found that FTS were accurate at detecting fentanyl in samples of street drugs and were unlikely to produce false negative results6.
In April 2021, the CDC and the Substance Abuse and Mental Health Services Administration announced that federal funding could be used to purchase rapid FTS in an effort to curb drug overdose deaths. The change applies to all federal grant programs, as long as the purchase of FTS is consistent with the purpose of the program7.
Included in a federal spending package signed by the president in late December 2022, the Mainstreaming Addiction Treatment Act removed the federal requirement for health care practitioners to have a waiver to prescribe medication for opioid use disorder, allowing practitioners to more easily prescribe buprenorphine8 and increasing access to treatment.
The Biden Administration also released its whole-of-government approach to address the trafficking of fentanyl in the United States in April 20239. In collaboration with international partners, the approach includes:
- Strengthening intelligence sharing and communication at the federal, state, and local levels;
- Disrupting operations by partnering with private sector businesses to intercept illegal substances and production materials;
- Educating companies on how to protect themselves from illegal activities;
- Creating tighter regulations for the financial sector to better identify and eliminate drug traffickers; and
- Addressing loopholes related to chemical composition of fentanyl and making it a Schedule I drug under the Controlled Substances Act.
The Biden Administration is also increasing public health initiatives to expand the availability of opioid overdose reversal products such as Naloxone and increasing treatment and medication options for people in jails and prisons.
Legality and Decriminalization of FTS
As of August 2023, FTS are legal to possess in 30 states and the District of Columbia. In 2023, Arkansas (HB 1456), Florida (SB 164), Hawaii (SB 671), Illinois (HB 3203), Kansas (SB 174), Kentucky (HB 353), Mississippi (HB 722), New Hampshire (HB 287), South Carolina (HB 3503), South Dakota (HB 1041), and Utah (SB 86) enacted legislation to exempt FTS from their statutory definition of “drug paraphernalia.”
Several states have passed legislation in recent years affecting the legality of FTS:
- Since 2018, 23 states have amended their statutory definition of “drug paraphernalia” or “drug related object” to exempt some or all types of drug testing equipment;
- Four states — Nebraska, New York, South Carolina, and Wyoming — either never had a provision regarding testing equipment in statute or amended it prior to 2018;
- Nine states, including Alabama, Georgia, Louisiana, Minnesota, Tennessee, and Wisconsin, limit allowed testing equipment to that which can detect fentanyl, fentanyl analogues, or other synthetic opioids;
- Seven states, including Illinois, Oklahoma, and North Carolina, as well as the District of Columbia, include testing equipment in their statutory definition of “drug paraphernalia” but do not have a criminal penalty for using or possessing such equipment, at least for some individuals, such as those who work for syringe service programs; and
- In 12 states where FTS are illegal, Good Samaritan fatal overdose prevention laws provide legal immunity from criminal penalty in certain situations.
Kansas Legislative Action on Fentanyl and FTS
During the 2023 session, the Kansas Legislature passed SB 174, which was signed into law by the Governor on May 11, 2023, and became effective July 1, 2023. Among other provisions regarding crimes, the bill makes the following changes related to fentanyl:
- Amends the definition of “manufacture” to include placing a controlled substance into a pill or capsule form;
- Amends the definition of “drug paraphernalia” to exclude tests used to detect the presence of fentanyl, ketamine, or gamma-hydroxybutyric acid (GHB);
- Adds the definition of “fentanyl-related controlled substances” in the Kansas Criminal Code to include certain Schedule I and Schedule II controlled substances, as specified by the bill; and
- Amends the crime of manufacturing a controlled substance to make the manufacturing of a fentanyl-related controlled substance a drug severity level 1 felony, increased from a drug severity level 2 felony.
- https://nida.nih.gov/research-topics/trends-statistics/overdose-death-rates ↩︎
- https://www.cdc.gov/stopoverdose/fentanyl/index.html ↩︎
- https://www.ncsl.org/state-legislatures-news/details/to-combat-overdose-crisis-states-bring-tough-new-laws-to-fight-against-fentanyl ↩︎
- https://www.dhs.wisconsin.gov/news/releases/101322.htm ↩︎
- https://harmreduction.org/issues/fentanyl/fentanyl-test-strip-pilot/ ↩︎
- https://www.brown.edu/news/2018-10-18/fentanyl ↩︎
- https://www.cdc.gov/media/releases/2021/p0407-Fentanyl-Test-Strips.html ↩︎
- Buprenorphine is the first medication to treat opioid use disorder that can be prescribed or dispensed in physician offices. It is a opioid partial agonist and produces effects such as euphoria or respiratory depression at low to moderate doses, with weaker effects than full opioid agonists like methadone. When taken as prescribed, buprenorphine diminishes withdrawal symptoms and physical dependency on opioids. ↩︎
- https://www.whitehouse.gov/briefing-room/statements-releases/2023/04/11/fact-sheet-biden-harris-administration-announces-strengthened-approach-to-crack-down-on-illicit-fentanyl-supply-chains/ ↩︎
by Leighann Thone, PhD
Research Analyst
785-296-4181