How to Improve Access to Fentanyl Testing Strips

Legislative Analysis and Public Policy Association legislative attorney Stephanie Noblit and senior legislative attorney Jon Woodruff, who presented at the Rx and Illicit Drug Summit earlier this year, explain why gaining access to legal fentanyl test strips is a state-level policy issue. Noblit and Woodruff also explain what states can do to amend their laws to help improve access to these strips.

Check out more coverage from the Rx and Illicit Drug Summit.

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Stephanie Noblit: Hi everyone. My name is Stephanie Noblit, and I'm a legislative attorney with the Legislative Analysis and Public Policy Association or LAPPA. And I'm here with my colleague, Jonathan Woodruff, who is a senior legislative attorney with LAPPA, and we presented on fentanyl test strips, specifically the legal implications of them and what states can do to modify or amend their laws in order to make sure that people have access to legal fentanyl test strips. Fentanyl test strips are small devices that can be used to test a person's drug to see if it has fentanyl or not. And then based off of whether the test is positive or negative for fentanyl, they can make a decision on how they want to use or proceed with using those drugs. So Jon and I did a 50-state review of fentanyl test strip laws, and we found that the vast majority or about half of the states actually have laws on the books where fentanyl test strips are still illegal, meaning they haven't amended their laws to change the language, to allow fentanyl test strips or any other type of drug testing equipment.

Jonathan Woodruff: The reason fentanyl test strips are technically illegal in a number of jurisdictions is because those jurisdictions passed the Model Drug Paraphernalia Act of 1979 that the Drug Enforcement Administration (DEA) created. And within that act, the definition of drug paraphernalia includes items that are used for testing or analyzing the purity of controlled substances. And so in a state where that definition continues today, technically drug testing equipment, including a fentanyl test strip, falls under that definition of drug paraphernalia and is thus technically illegal. Broadly speaking, slightly over half of states make fentanyl test strips technically illegal. The states that do allow it fall into a number of different categories. They're not all the same. There's a few states that do not penalize drug paraphernalia at all. For instance, Alaska has no law, Vermont, Oregon, and Michigan do not prohibit the possession, use or possession of drug paraphernalia.

And there's a few states that have never included the testing or analyzing of that type of equipment within their drug paraphernalia definitions. So those states, fentanyl test strips are legal. There's also a number of states that have changed their laws in recent years to either removed from the definition of drug paraphernalia, fentanyl test strips, or equipment to test fentanyl, or to look for the presence of fentanyl or fentanyl analog or in the case of a state like North Carolina, they've exempted from criminal penalty the use of that type of equipment by individuals seeking to introduce a controlled substance, seeking to ingest or inject one.

SN: So…the legalization or criminalization of fentanyl test strips is actually a state issue and not a federal issue, as most people believe. So, it is up to state legislatures to amend their drug paraphernalia laws in order to allow for the legalization of fentanyl test strips and other drug paraphernalia. The federal law does not criminalize the possession of drug paraphernalia, which is why this is a state issue and not a federal issue.

JW: So, in recent years, a number of states have amended their drug paraphernalia laws to make testing equipment or the possession of test equipment or fentanyl test strips specifically legal. And so as it stands only 11 of the 26 states where fentanyl test strip possession is illegal have pending legislation, and a number of states have introduced or enacted new state laws since 2018. Our organization, LAPPA, is also developing a model act that will be titled the Model Fentanyl Test Strip and Other Drug Testing Equipment Act that is designed to provide a template for states looking to allow fentanyl test strips and even more broadly other drug testing equipment to allow the possession of that or looking to amend what they've already done in recent years.

We are developing this model act. So, developing it, we've determined a few questions that states should consider when they're thinking of doing this—for instance, how broad they wish to make the allowance for testing equipment, whether it's only fentanyl specific or a broader set of testing equipment. And also they need to consider how they plan to have states fund the provision of testing equipment. Ideally legislation would want to provide for budgetary allocation for the legislature, or allow for grants, funds that states have that they can provide to organizations as state grants that they allow for the purchase of federal test strips or other drug testing equipment.