[Op-ed] Congress Needs to Take Immediate Action on Fentanyl Legislation to Save Lives

By

Geoffrey S. Berman, U.S. Attorney for the Southern District of New York,

Richard P. Donoghue, U.S. Attorney for the Eastern District of New York,

Grant C. Jaquith, U.S. Attorney for the Northern District of New York, and

James P. Kennedy, U.S. Attorney for the Western District of New York

Fentanyl, while providing great help and hope to those suffering from chronic pain throughout the United States, has also been the cause of tragic suffering and death for hundreds of thousands of people. Synthetic opioids such as fentanyl and its chemical variants or analogues are significantly more potent and lethal than heroin.  Carfentanil, for example, is an analogue of fentanyl that is approximately 100 times more potent than fentanyl and approximately 1,000 times more potent than heroin.  Its commercial uses include serving as a tranquilizer for large animals such as elephants and rhinoceroses.  Even the tiniest amount of a fentanyl analogue – just a few grains, less than an eighth the size of a penny – can be fatal to humans.

Over the past decade, each of our offices has charged large-volume illegal distributors of potentially lethal fentanyl.  And yet, the death toll continued to rise because drug trafficking cartels responded to our enforcement efforts by manufacturing equally and even more dangerous analogues of fentanyl. 

To address this deadly trend, the Drug Enforcement Administration (DEA) began using its scheduling authority – that is, its authority to designate substances as illegal narcotic drugs – to criminalize the distribution of particular synthetic analogues of fentanyl.  The response of criminal syndicates, motivated by the high profitability of the trade in potentially lethal fentanyl analogues, was to alter the formulation of a particular prohibited analogue so that it fell outside the ban, which could sometimes be accomplished by changing a single molecule in the drug’s chemical composition. 

Each time that new formulation was prohibited, the criminal producers would come up with a new analogue with a chemical formula that again fell outside the ban. 

In February 2018, the DEA instituted a two-year ban on all fentanyl analogues to obviate the continual race to keep up with criminal producers.  That ban has played an essential role in each of our offices’ efforts to combat the opioid epidemic, and to prosecute large-scale distributors responsible for peddling deadly fentanyl analogues in our communities.

Unfortunately, the DEA ban on fentanyl analogues will end on February 6 unless Congress acts.  We urge Congress to pass a bill that ensures the permanent class-wide scheduling of fentanyl analogues. We are confident Congress can accomplish this without impeding responsible medical research or interfering with medically necessary prescriptions.

A number of organizations have voiced opposition to the proposed legislation, pointing out, among other things, that the bill does not embrace public health approaches to the overdose crisis.

We agree that a comprehensive approach to the opioid crisis is needed, and permanent class-wide scheduling should be viewed as part of a broader program.  But a bill banning fentanyl analogues should not be opposed because it doesn’t also address addiction treatment.  Outlawing fentanyl analogues will save lives.

We urge Congress to make permanent the DEA’s temporary scheduling order for fentanyl analogues.

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