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 (FDA) 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 and illegally distributed 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 over 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 Testing Strips
Fentanyl testing strips (FTS) are a form of inexpensive drug testing technology originally developed for urine tests, but which 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; typically, one line indicates fentanyl is present and two lines indicate a negative result. FTS are inexpensive, typically costing about $1 each.
FTS Research and Federal Action
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 results.
A 2017 study conducted by the Drug Overdose Prevention and Education Project in San Francisco 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 drugs.
In April 2021, the federal Centers for Disease Control and Prevention (CDC) and Substance Abuse and Mental Health Services Administration (SAMHSA) 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 program.
Legality and Decriminalization of FTS
As of October 2022, FTS are legal in 26 states and the District of Columbia. In Georgia, 2022 HB 1175, which exempts testing equipment used to determine whether a controlled substance has been adulterated by a synthetic opioid from the definition of “drug related object,” was signed into law in May 2022 and will take effect in July 2023.
In addition to Georgia, several states have passed legislation in recent years affecting the legality of FTS:
- Since 2018, 12 states have amended their statutory definition of “drug paraphernalia” or “drug related object” to exempt some or all types of drug testing equipment. These states include Colorado, Louisiana, Minnesota, Nevada, Tennessee, and Wisconsin;
- 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 only 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 FTS
During the 2021-2022 biennium, FTS were addressed by amendments:
- HB 2277 (2021) would have amended the definition of “possession” and “drug paraphernalia” in the Kansas Criminal Code (Code). The House Committee of the Whole amended the bill to exempt FTS from the definition of “drug paraphernalia.” The bill died in the Senate Committee on Judiciary; and
- HB 2262 (2021), regarding the Uniform Controlled Substances Act, was taken up by a 2022 Conference Committee, who agreed to amend the bill to exclude FTS from the definition of “drug paraphernalia” in the Code, remove the contents of 2022 HB 2540, and add the amended contents of HB 2262. The Conference Committee Report for HB 2540 was not adopted by the Senate, and a second Conference Committee was appointed, which agreed to remove the provision regarding FTS.