Fentanyl Gridlock

Congress cannot agree on a permanent ban for chemical derivatives of America's deadliest ever drug

I first wrote about fentanyl in 1990, long before it became a household name as a synthetic drug that left a trail of death and destruction across America. A California prosecutor told me then that the only reason it was not a bigger problem was that no major organized-crime syndicate had taken control of its dis­tribution. That ended long ago with the entry of China’s unregulated chemical industry and Mexico’s Sinaloa and Jalisco cartels.

Last year, the DEA seized more than 57 million fentanyl-laced pills and more than 13,700 pounds of powder. A lethal dose of fentanyl can be as little as 2 mg, about 5 grains of sand. In the first ten weeks of 2023, fentanyl seizures set another record, over 47 million deadly doses. DEA officials privately admit that they intercept only a small fraction of the drug entering the U.S. Fentanyl is responsible for 70% of the record-breaking 106,000 overdose deaths and poisonings last year; the leading cause of death for people ages 18-45.

It is a mistake to think these grim stats are enough to get bipartisan support to battle the epidemic. Congress cannot agree on one of the most basic issues, permanently banning so-called fentanyl analogues.

A fentanyl analogue is created when high-volume laboratories in China and Mexico modify the drug’s chemical structure. Sometimes the change can be as small as altering a single molecule. While the final white, powdery appearance of the analogues is virtually identical to fentanyl itself, the slight chemical changes can make it more potent. One analogue, carfentanil, is 100 times more powerful than fentanyl.

More potency is not the only motivation for fentanyl chemists to create analogues. Until recently, they were not automatically considered controlled substances by the Drug Enforcement Administration (DEA) and many other international agencies. The tiny chemical alterations put the drug traffickers far ahead of law enforcement.

Adding a compound to the DEA’s list of prohibited drugs, for instance, is complex and requires study of its chemical structure, pharmacology, potential for abuse, and public health risk. Every time there is a new fentanyl analogue, it kicks off a time-consuming process of extensive laboratory testing and analysis, input from experts in toxicology, pharmacology, and public health. Drug traffickers monitor the progress made by law enforcement and whenever it is close to classifying and banning a new analogue, the illegal labs make another alteration and force the process to restart.

The DEA tried closing this loophole in 2018 when it temporarily banned all fentanyl-related substances. The Trump Administration got the Chinese government to prohibit the production of four major fentanyl analogues. It was not a perfect fix but had a big impact. In the two years before the DEA acted, there were 7,058 interceptions of drugs not on the Agency’s schedule. In the two years following the order, that dropped by almost 90%.

The problem is that the DEA’s order expired on February 6, 2020. Since then, Congress has voted repeatedly to temporarily extend the ban on all fentanyl analogues. However, it has failed to muster the bipartisan support to make the ban permanent. The latest version is Save Americans from the Fentanyl Emergency (SAFE) Act. It has bipartisan sponsors. Even it gets past the House, however, it appears dead in the Senate. Democrats, guided by a Biden administration drug policy statement, have mostly refused to support a permanent ban unless any bill “includes $10.7 billion to expand access to substance use prevention, treatment, harm reduction, and recovery support services.”

Almost nothing is surprising about how the pettiness and bickering of our government officials often prevents important legislation from moving forward. But tying an effort to permanently ban lethal fentanyl analogues to drug rehabilitation, seems particularly misplaced. Those struggling with addiction undoubtedly deserve better resources and programs to get the care they need. That should be separate from providing a permanent solution to close loopholes and incentives for drug traffickers to develop new fentanyl analogues. It is time to pass the SAFE Act.