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To Combat Overdose Crisis, States Bring Tough New Laws to Fight Against Fentanyl

New measures will target the manufacture and sale of the drug, boost harm reduction strategies and awareness campaigns, and help train first responders.

By Tammy Hill  |  August 11, 2023

Developed in 1959, pharmaceutical fentanyl is an analgesic synthetic opioid used primarily after surgery, 

for severe pain or advanced stage cancer. However, it is also made and used illegally.

Research has shown, due to its chemical structure, fentanyl has “multiple areas that can be substituted with different functional groups to change its potency,” thereby increasing the possibility for overdose when improperly used, ingested or snorted.

Fentanyl is up to 50 times stronger than heroin and 100 times stronger than morphine.

—Centers for Disease Control and Prevention

Beginning with the third wave of the opioid overdose epidemic in 2013, illicitly manufactured fentanyl, or IMF, and other synthetic drugs have caused the deaths of more than 150 people every day. In a provisional report, the Centers for Disease Control and Prevention put the number of deaths due to drug overdose at 105,258 in the 12-month period beginning in February 2022.

Because of its low cost and high potency, IMF often is mixed—sometimes unintentionally—with other 

drugs, including heroin, methamphetamine and cocaine. Unfortunately, fentanyl mixed in drugs is undetectable through taste, smell or sight, and even if its presence is detected using a fentanyl test strip, the amount within a substance is unknown.

Because of the uncertainties in detecting the presence of fentanyl, the ongoing overdose deaths and the persistence of foreign importation, policymakers are taking action to mitigate the distribution, manufacture and sale of the drug, as well as investing in harm reduction strategies and awareness campaigns, and using some opioid settlement funds to train first responders.

State legislative action

During the 2023 legislative session, over 600 bills were introduced related to fentanyl, and at least 103 laws were enacted. Most bills intersect with the criminal justice and public health systems. States introduced bills to change the classification of fentanyl as a controlled substance, and they considered increasing penalties for possession and distribution, drug-induced homicide and drug delivery resulting in death. States also focused on increasing awareness about the risk associated with illicitly manufactured fentanyl and funded training programs for first responders.

Tougher laws

Mississippi, Hawaii, Kansas and Arkansas joined at least 10 other states since 2018 in amending their recognized definition of drug paraphernalia to exclude fentanyl test strips. According to the CDC, using fentanyl test strips may assist people and communities in detecting fentanyl and  reducing the risk of overdose death.

States also are examining penalties for the illicit distribution and manufacture of fentanyl. Arkansas and Kansas also added penalties for anyone who possesses, distributes or manufactures fentanyl that might appeal to a minor through shape, color, taste, design or packaging. In Arkansas, this offense is now an unclassified felony, punishable by a term of life imprisonment and a $1 million fine. Kansas amended its law to increase the offense level for manufacturing a fentanyl-related controlled substance in pill or capsule form from a level two to a level one felony. The new law also requires presumptive imprisonment and doubling the maximum duration of incarceration.

Education and awareness

States took a number of approaches to raise the level of awareness about the risk of fentanyl-contaminated drugs. The Mississippi Legislature directed its department of mental health to implement a comprehensive statewide fentanyl and drug use education, prevention and cessation program. At a minimum, the program will use media outlets to discourage the use of fentanyl, create educational materials for use in schools and community programs, increase supports for people currently using fentanyl, and establish an evaluation system to understand the effect of these efforts.

Similarly, Texas will add “grade appropriate levels of curriculum and instruction on the dangers of opioids, including addiction to and abuse of synthetic opioids such as fentanyl,” in the 2023-24 school year. The bill also creates the fentanyl poisoning awareness week where students grades six to 12 will learn about the “dangers posed by the drug fentanyl and risks of fentanyl poisoning, including overdose.”

California designated May 9, 2023, as national fentanyl awareness day with the goal of increasing awareness of the impact of fake or counterfeit fentanyl pills on families and youth.

To support the abatement of opioid use disorders, use by youth and overdose, New Mexico and New Jersey passed legislation to use evidence-based or evidence-informed strategies for preventing, intervening, treating and supporting people struggling with or impacted by drug use. The two states will allocate funds received from opioid settlements to educate law enforcement and other first responders on appropriate practices when dealing with fentanyl or other drugs as well as with people improperly using fentanyl.

Federal action

The spending package Congress passed in December last year removed the federal requirement for health care practitioners to have a waiver to prescribe medication for opioid use disorder. With this removal, practitioners can more easily prescribe buprenorphine, increase access to treatment and reduce stigma surrounding opioid use.

The Biden administration recently released its whole-of-government approach to address the trafficking of fentanyl into American communities. A collaboration with international partners, the approach, which aims to disrupt the global supply of fentanyl, includes:

  • Strengthening intelligence sharing and communication at the federal, state and local levels.
  • Disrupting operations by partnering with private sector business 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.
  • Addressing loopholes related to chemical composition of fentanyl and making it a Schedule I drug under the Controlled Substance Act.

The administration is also increasing public health initiatives to expand the availability of opioid overdose reversal products to youth and other largely affected communities. This includes increasing treatment and medication options for people in jails and prisons.

Emerging Drug Threat and Federal Response

The Biden administration in April used its authority to declare fentanyl adulterated with xylazine, also known as “tranq” or “zombie drug,” as an emerging threat to the United States. The designation expanded on the provisions of the SUPPORT Act of 2018.

Xylazine is a non-opioid tranquilizer approved by the FDA for veterinary, not human, use.

According to the Office of National Drug Control Policy, “Xylazine combined with fentanyl is being sold illicitly and is associated with significant and rapidly worsening negative health consequences, including fatal overdoses and severe morbidity.”

Between 2020 and 2021, xylazine-positive overdose deaths increased by 100% to more than 1,000%, depending on the region of the country. A recent CDC analysis showed that among 21 jurisdictions, the monthly percentage of IMF-involved deaths with xylazine detected increased by 276% from January 2019 (2.9%) to June 2022 (10.9%).

The drug policy office developed a national response plan for testing, treatment, data collection and supportive care protocols for xylazine, and interactions of xylazine and fentanyl.

The Food and Drug Administration has taken steps to restrict unlawful imports of xylazine pharmaceutical ingredients and finished doses to ensure imports are directed toward state-licensed pharmacies and approved manufacturing facilities.

More information on xylazine can be found in this report from the Drug Enforcement Administration.

Tammy Hill is a project manager in NCSL’s Health Program.

This project is supported by the Centers for Disease Control and Prevention of the U.S. Department of Health and Human Services as part of a financial assistance award totaling $200,000 with 100% funded by the CDC/HHS. The contents are those of the author(s) and do not necessarily represent the official views of, nor an endorsement by, the CDC/HHS or the U.S. government.

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