Pennsylvania law prevents people who use drugs from testing for fentanyl and avoiding overdoses.
Overdose deaths are on the rise. More than 93,000 people died due to drug overdoses last year—21,000 more people than in 2019. The rise in deaths due to drug overdoses may be due in part to the pandemic, but there is another culprit: fentanyl.
Fentanyl, a synthetic opioid, is significantly more potent than heroin and provides a cheaper high that comes with an increased risk of overdosing. It can contaminate other drugs, such as heroin or cocaine, and evade detection. According to a recent study, 57 percent of people who died from a fentanyl overdose also tested positive for another drug, indicating widespread fentanyl contamination of the cocaine, methamphetamine, and heroin supply in the United States.
Without using test strips, a person who uses drugs cannot determine whether the drugs contain or have been laced with fentanyl. Fentanyl test strips provide a fast and inexpensive way to test for fentanyl, enabling someone using drugs to better evaluate their risk of overdose.
But in Pennsylvania, it is illegal for individuals to possess and use fentanyl test strips because fentanyl test strips qualify as drug paraphernalia under state law.
Some Pennsylvania lawmakers have tried to amend the law so that individuals can use fentanyl test strips for personal use. In the last legislative session, State Representative Jim Struzzi (R) introduced a bill that would legalize the test strips for personal use, but the bill died in committee. Struzzi introduced the same bill in May 2021 with bipartisan cosponsors, and it still remains in a House committee. Similarly, State Senator Tim Kearney (D) has proposed the same bill, and it has similarly been languishing in a Senate committee.
In the absence of legislative action, the Attorney General of Pennsylvania, District Attorney of Philadelphia, and Mayor of Philadelphia have taken action to increase the accessibility of fentanyl test strips.
Pennsylvania Attorney General Josh Shapiro directed his office to “treat addiction as a disease, not a crime,” announcing a commitment not to prosecute individuals for possessing fentanyl test strips. Philadelphia District Attorney Larry Krasner adopted the same policy in March 2021, regarding fentanyl test strips “as a tool to prevent overdose and save lives.”
Even more recently, Philadelphia Mayor Jim Kenney signed an executive order establishing a policy not to arrest people for possessing or distributing fentanyl test strips. The new executive order emphasizes the use of fentanyl test strips as a harm reduction tool that can save lives by preventing unintentional overdoses. The Centers for Disease Control and Prevention (CDC) has also endorsed fentanyl test strips to reduce drug overdoses.
In response to the increase in drug overdose deaths, particularly the increase in deaths caused by fentanyl overdoses, in 2021 the CDC released new guidance to allow federal grant programs to use federal funds in purchasing fentanyl test strips. Tom Coderre, the official overseeing substance abuse policy at the federal level, has praised the guidance because it provides a new tool “to prevent overdose and connect people who have substance use disorders to evidence-based treatment options.”
Unfortunately, some of the main obstacles to the CDC’s strategy are state laws, such as Pennsylvania’s controlled substances statute, that classify fentanyl test strips as drug paraphernalia. Thirty states currently have laws that prohibit possession and use of fentanyl test strips.
Many states, however, are moving toward allowing use of fentanyl test strips because of the harm reduction benefits. Some states have removed criminal penalties for use or possession of all drug paraphernalia; others have adopted the CDC’s approach and removed fentanyl test strips from drug paraphernalia laws.
And surveys support the CDC’s conclusion that providing additional access to fentanyl test strips will help prevent overdoses. People who use drugs want to know if drugs contain fentanyl and claim that they will modify their behavior based on the knowledge that the drugs contain fentanyl.
Because fentanyl test strips help prevent overdoses rather than responding to overdoses, groups such as the Network for Public Health Law view drug paraphernalia law reform as an important, and often underused, strategy. In contrast, laws that promote the availability of naloxone—an overdose reversal drug—may help to reduce overdose deaths but are only applicable after an overdose has occurred. “Good Samaritan” laws, which provide legal protections to people who report potential overdoses, reduce overdose deaths in a similar way.
Despite the potential for fentanyl test strips to reduce the number of overdose deaths, there remains the risk of user error. Fentanyl test strips may also cross-react with methamphetamine—yielding uncertain results. The strips also do not measure quantity or potency of drugs and may not detect other synthetic opioids.
Although fentanyl test strips are not a perfect harm reduction tool, they are cheap, quick, and simple to use—making them an excellent tool for state and local programs and for people who use drugs. Pennsylvania lawmakers and lawmakers throughout the United States prevent people from accessing a potentially lifesaving tool by failing to amend drug paraphernalia statutes. As Krasner said when promoting his policy not to prosecute people in possession of fentanyl test strips: “You have to survive to recover.”
In the absence of legislative action, law enforcement officials—such as Shapiro and Krasner—will continue to refuse to prosecute, which leaves public health organizations to promote harm reduction and people who use drugs at a higher risk of overdosing.