Emerging Drug Threats

6/7/2017

Opioids

State lawmakers are concerned about the powerful synthetic opioid fentanyl and related compounds carfentanil and acetyl fentanyl.

These substances are increasingly available in the United States and are more potent than heroin or morphine. Even small amounts equivalent to a few grains of salt can be deadly, and in addition to more traditional methods of administration, can be easily inhaled or absorbed through the skin. These substances pose an extreme risk, not only to users, but also to law enforcement and first responders who encounter these substances in the course of their work.

Fentanyl

Fentanyl is a powerful opioid similar to morphine, but 50 to 100 times more potent. Legal pharmaceutical fentanyl is used for treating severe pain after surgery or advanced cancer pain. Federally, it is a Schedule II controlled substance, but illicitly manufactured fentanyl is increasingly blamed for opioid deaths when it is mixed with heroin or other drugs.

According to the Centers for Disease Control and Prevention, during 2013-2014 the number of drug products obtained by law enforcement that tested positive for fentanyl increased by 426 percent, and synthetic opioid–involved overdose deaths (excluding methadone) increased by 79 percent in the United States. A few states have responded to this growing problem by scheduling illicit forms of fentanyl and creating trafficking penalties. Recent examples:

 

State Laws Related to Fentanyl

STATE

LAW

Georgia

Ga. Code Ann. §16-13-25

 

Schedule I includes the fentanyl analog structural class and includes any salts, isomers, or salts of isomers. Excepts compounds utilized as part of the manufacturing process by a commercial industry of a substance or material not intended for human consumption and compounds utilized as a prescription administered under medical supervision or for research at a recognized institution.

Illinois

720 ILCS 570/401

Prohibits manufacture, delivery, and possession with intent to manufacture or deliver fentanyl or any analogue. Penalties are as follows:

(A) Not less than six years and not more than 30 years with respect to 15 grams or more but less than 100 grams of a substance containing fentanyl, or an analog thereof.

(B) Not less than nine years and not more than 40 years with respect to 100 grams or more but less than 400 grams of a substance containing fentanyl, or an analog thereof.

(C) Not less than 12 years and not more than 50 years with respect to 400 grams or more but less than 900 grams of a substance containing fentanyl, or an analog thereof.

(D) Not less than 15 years and not more than 60 years with respect to 900 grams or more of a substance containing fentanyl, or an analog thereof…

 

Provides that three years shall be added to the term of imprisonment and the maximum sentence shall be increased by three years if the substance containing a controlled substance contains any amount of fentanyl (except for violations in which the controlled substance is fentanyl). Provides that probation, periodic imprisonment, or conditional discharge may not be imposed for the knowing manufacture or delivery of, or possession with intent to manufacture or deliver, more than five grams of a substance containing fentanyl.

Kentucky

KRS §218A.010

Defines fentanyl, fentanyl derivatives and carfentanil.

KRS §218A.050

Makes fentanyl derivatives a Schedule I substance.

KRS §218A.1410

Prohibits importation of fentanyl. Provides that a person is guilty of importing fentanyl or fentanyl derivatives when he or she knowingly and unlawfully transports any quantity of heroin, fentanyl, carfentanil, or fentanyl derivatives into the commonwealth by any means with the intent to sell or distribute, which is a class C felony. Requires an offender to serve at least 50 percent of their sentence.

KRS §218A.1412

Prohibits trafficking of fentanyl. Provides that a person is guilty of trafficking in a controlled substance in the first degree when he or she knowingly and unlawfully traffics any quantity of heroin, fentanyl, carfentanil, or fentanyl derivitives. A first offense is a class C felony and a second offense is a class B felony. Requires an offender to serve at least 50 percent of their sentence.

KRS §218A.142

Prohibits aggravated trafficking of fentanyl. Provides that a person is guilty of aggravated trafficking in a controlled substance in the first degree when he or she knowingly and unlawfully traffics in 28 grams or more of fentanyl; or 10 grams or more of carfentanil or fentanyl derivatives. Aggravated trafficking is a class B felony and the offender is required to serve 50 percent of their sentence.

KRS §218A.142

Prohibits trafficking in a misrepresented controlled substance. Provides that a person is guilty of trafficking in a misrepresented controlled substance when he or she knowingly and unlawfully sells or distributes fentanyl, carfentanil, or any schedule I substance while misrepresenting the identity of the drug being sold or distributed as a legitimate pharmaceutical product, which is a Class D felony.

Maine

17-A MRSA §1107

Schedules fentanyl powder as a schedule W drug.

17-A MRSA §1101

 

Makes it a trafficking offense to possess 2 or more grams of fentanyl powder or 90 or more individual bags, folds, packages, envelopes, or containers of any kind containing fentanyl powder. Makes it an offense to “furnish” controlled substances by possession of 2 grams or more of fentanyl powder or at least 45, but fewer than 90 individual bags, folds, packages, envelopes, or containers of any kind containing fentanyl powder. Defines "fentanyl powder" as any compound, mixture or preparation, in granular or powder form, containing fentanyl.

Maryland

Md. CRIMINAL LAW Code Ann. §5-614

Prohibits bringing four or more grams of fentanyl or a fentanyl analogue into the state. Provides that a person who brings in 4 or more grams of fentanyl or a fentanyl analogue is guilty of a felony and on conviction is subject to imprisonment not exceeding 25 years or a fine not exceeding $50,000 or both.

Md. CRIMINAL LAW Code Ann. §5-608.1

Prohibits a person knowingly distributing a certain mixture of controlled dangerous substances. Prohibits fentanyl or any analogue of fentanyl or a mixture that contains heroin and a detectable amount of fentanyl or any fentanyl analogue. Creates a penalty of imprisonment not exceeding 10 years to be served consecutively to any penalty under §5-602 or any other section.

Massachusetts

ALM GL ch. 94C, §32E

 

Prohibits the trafficking in of fentanyl. Provides that any person who trafficks in fentanyl, by knowingly or intentionally manufacturing, distributing, dispensing or possessing with intent to manufacture, distribute or dispense or by bringing into the commonwealth a net weight of more than 10 grams of fentanyl shall be punished by a term of imprisonment in state prison for not more than 20 years. Defines "fentanyl as any derivative of fentanyl and any mixture containing more than 10 grams of fentanyl or a derivative of fentanyl.

North Dakota

N.D. Cent. Code Ann. § 19-03.1-05

Schedule I includes fentanyl derivative class substances and provides examples and limited exceptions.

South Dakota

S.D. Codified Laws § 34-20B-13

Schedule I includes fentanyl analogs and examples.

West Virginia

2017 WV H 2329

Prohibits manufacture, delivery, transport into state, and possession of fentanyl. Penalties are as follows:

(1) If the net weight of fentanyl involved in the offense is less than 1 gram, such person shall be imprisoned in a correctional facility not less than two nor more than 10 years.

(2) If the net weight of fentanyl involved in the offense is 1 gram or more but less than 5 grams, such person shall be imprisoned in a correctional facility not less than three nor more than 15 years.

(3) If the net weight of fentanyl involved in the offense is 5 grams or more, such person shall be imprisoned in a correctional facility not less than four nor more than 20 years.

 

Carfentanil     

Carfentanil is another extremely potent opioid that is chemically related to fentanyl. It is 100 times more potent than fentanyl and 10,000 times more potent than morphine. Federally, it is a Schedule II narcotic that has not been approved for human use. Until its recent illicit use by humans it was used only in veterinary medicine as a general anesthetic for large animals. In the examples above, Kentucky has singled out carfentanil alongside other opioids in their trafficking provisions.

 

Acetyl Fentanyl

Acetyl fentanyl is a synthetic opioid chemically very similar to the drug fentanyl but has not been approved for medical use and has now been banned in numerous states. The Drug Enforcement Administration (DEA) has additional information on this substance on its webpage.

Update: On Nov. 9, 2017, the DEA announced its intent to schedule all fentanyl-related substances on an emergency basis.

States That Have Scheduled Acetyl Fentanyl

Map showing states that have banned acetyl fentanyl

Citations: Alabama §20-2-23 | California Health & Safety Code §11054, see also §11019 | Florida §893.03 | Hawaii §329-14 | Iowa §124.204 | Indiana §35-31.5-2-321 | Kansas §65-4105 | Kentucky §218A.050 | Louisiana §40:964 | Maine 17-A M.R.S.A. §1102 | Massachusetts ch. 94C, §31 | Minnesota §152.02 | Mississippi §41-29-113; New Hampshire §318-B:1, see also §318-B:26; North Carolina §90-89; North Dakota §19-03.1-05; Pennsylvania 35 Pa. Stat. Ann. §780-104; South Dakota §34-20B-13; Texas Health & Safety Code §481.032; Utah §58-37-4; Virginia §54.1-3446; West Virginia House Bill 2526 (2017); and Wisconsin §961.14.

U-47700

U-47700 or “Pink” is a powerful synthetic opioid that has also been associated with several overdose fatalities in the U.S. It was temporarily classified as a federal Schedule I controlled substance by the DEA in November of 2016 and in the past few years several states have also banned the substance.

States That Have Scheduled U-47700

<ap of states that have banned U-47700

Citations: Arizona HB 2033 (2017); Delaware Code Ann. titl 16 sec. 4714(b)(59) ;Georgia §16-13-25; Idaho §37-2705; Indiana HB 1019 (2017); Iowa §124.204; Kansas §65-4105; Minnesota HB 470 (2017); Nebraska L 487 (2017); North Dakota §19-03.1-05; South Dakota §34-20B-13; Texas Health & Safety Code §481.032; Utah §58-37-4; Virginia HB 1610 (2017), SB 1546 (2017); West Virginia HB 2329 (2017), HB 2526 (2017); and Wisconsin §961.14.

Synthetic Drugs: Cannabinoids and Cathinones

Since 2011, all 50 states have banned two types of synthetic drugs­—cannabinoids (a.k.a. “synthetic marijuana”, “Spice” or “K2”) and cathinones (a.k.a. “bath salts”) —with the majority doing so via legislation.

 

Types of Synthetic Drugs

Synthetic Cannabinoids are chemically engineered substances similar to tetrahydrocannabinol (“THC”), the active ingredient in marijuana. When smoked or ingested, the high can mimic that of marijuana but also can result in more severe reactions. 

Synthetic Cathinones, commonly known by their street name, “bath salts,” are a bi-product of cathinone, a psychoactive substance found in the khat plant. They can be inhaled or ingested and the high is similar to amphetamines like ecstasy or cocaine.

 

Initially, state legislative action targeted specific versions of these drugs with individual bans. Minor changes to the chemical composition of these substances, however, can create new, but very similar, drugs not previously covered by law. In response, legislation in subsequent years has been more general in nature, targeting entire classes of substances or using broad language to describe the prohibited drugs and their effects.

More recently, a few states also have passed laws restricting marketing, display, labeling, and advertising of these substances by utilizing consumer protection laws or classifying these activities as deceptive trade practices. Where substances are not specifically banned, law enforcement and prosecutors have also creatively used existing provisions such as agricultural regulations, consumer protection laws, and public nuisance laws to prosecute those selling these drugs. Below you will find descriptions of the various approaches taken to control these substances.

 

Types of State Laws Restricting Synthetic Drugs
TYPE SUMMARY
Individual Bans Individual substances are added to controlled substance schedules using their trade/street names or the chemical structure of a substance. Examples of banned synthetic cannabinoids include JWH-018, HU-210 and CP 47,497, and the four most commonly prohibited synthetic cathinones are mephedrone, MDPV, methylone and methedrone.

Class Bans

Groups of structurally similar synthetic drugs are banned by scheduling a structural “class.” Laws define the chemical characteristics of the structural class and sometimes list examples of individual substances that fall within the class. Examples of classes that have been identified in statute include: adamantoylindoles, adamantoylindazoles, benzoylindoles, cyclohexylphenols, cyclopropanoylindoles, naphthoylindoles, naphthoylnaphthalenes, naphthoylpyrroles, naphthylmethylindenes, naphthylmethylindoles, phenylacetylindoles, quinolinylindolecarboxylates, tetramethylcyclopropanoylindoles, tetramethylcyclopropane-thiazole carboxamides, substituted phenethylamines, and substituted tryptamines.

Analogue Laws

Substances that are not classified as controlled substances, but are structurally similar to substances that are scheduled are banned by analogue laws. Generally, these laws require that the analogue drug be substantially similar in chemical structure and intoxicating (pharmacological) effects as a scheduled controlled substance. According to the National Alliance for Model State Drug Laws, 34 states have analogue laws, and a number of states have amended their analogue laws to specifically address emerging synthetic substances.

Neurochemical Approach

Substances are banned based on the effects they have on the brain rather than by individual name or class. For example, Colorado §18-18-102 (34.5) defines “synthetic cannabinoid” as, “any chemical compound that is chemically synthesized and either: (I) Has been demonstrated to have binding activity at one or more cannabinoid receptors; or (II) is a chemical analog or isomer of a compound that has been demonstrated to have binding activity at one or more cannabinoid receptors.”

Administrative Actions

Some states have delegated scheduling authority to pharmacy boards or other agencies to quickly ban substances when they are identified. Some state legislatures have authorized agencies to pass temporary bans that will then be reviewed and codified by the legislature after a specified period of time, while others have given agency bans the full force and effect of statutory law. Examples: Minnesota and New York

Non-Criminal Approaches

States have used other legal strategies aside from criminal prosecution to reign in the supply of synthetic drugs. The following are examples of legal provisions that have been utilized:

  • Business licensure
  • Nuisance abatement
  • Consumer protection
  • Product labeling and branding regulation

Westlaw was used to conduct this research.

Additional Resources