Fentanyl Testing Strips Are Illegal in Many States — but That’s Changing

The United States has been struggling with an opioid crisis for two decades, but things took a sharp turn for the worse around 2014, when the synthetic opioid fentanyl began to contaminate first heroin, then nearly all illicit drugs sold in the country.

Fatal drug overdoses surpassed 100,000 deaths in a year for the first time in 2021 according to the National Institute on Drug Abuse. It was a somber milestone, one in which synthetic opioids, mostly fentanyl, were responsible for 70 percent of the lives lost — and according to the Centers for Disease Control and Prevention (CDC), the numbers keep rising.

Fentanyl is 50 to 100 times more potent than morphine. It quickly enters the brain, producing an extreme and euphoric “high,” but can cause breathing to stop completely, leading to death.

Because drugs like cocaine and MDMA (colloquially called molly or ecstasy) can be intentionally laced or accidentally cross-contaminated with fentanyl, users may not know just what they are ingesting until it’s too late.

Rapid fentanyl testing strips can provide people with vital information about a drug they are about to use, but U.S. paraphernalia laws, which prohibit items explicitly used for taking or testing illicit drugs, still create barriers to safe use in many states.

“If we are going to prevent overdoses, we need to equip people with the tools they need to protect themselves and to make an informed decision about the drugs they are consuming,” says Magdalena Cerdá, DrPH, the director of the center for opioid epidemiology and policy at the NYU Grossman School of Medicine in New York City.

Laws Often Prohibit Drug Testing Equipment

Every state except Alaska has paraphernalia laws on the books. According to Corey Davis, JD, the director of the Harm Reduction Legal Project at the Network for Public Health Law in Los Angeles, most of these laws are based on (or are near copies of) the Model Drug Paraphernalia Act, which the Drug Enforcement Administration (DEA) published in 1979.

Although the laws were originally meant to curb marijuana use, the language they use often prohibits the possession of equipment for testing illicit drugs, which includes fentanyl test strips.

But things are changing. The overwhelming number of overdose deaths in the past three years has led to a windfall of state-level revisions to paraphernalia laws.

In a review published in May 2022 in the journal Drug and Alcohol Dependence, researchers at the Network for Public Health Law, including Dr. Davis, scoured each state’s paraphernalia laws as of July 31, 2021, to determine the legality of drug checking equipment. In some states, it’s legal to possess (but not distribute) testing strips, while in others both are fair game. Other states prohibit them entirely.

The study found that as of July 2021, it was legal to possess at least some testing equipment in 22 states. In 19 states, it was legal to distribute this equipment to adults.

In the remaining states, paraphernalia laws made testing equipment illegal to some degree, but that varied. In 14 of these states, it was legal to distribute or possess drug testing equipment as long as the equipment came from a syringe services program. Penalties for violators ranged from small fines to multiyear jail sentences.

Between August 1, 2021, and August 31, 2022, laws that permit drug testing equipment to be possessed, distributed, or both went into effect in 10 states, an updated version of the report found.

Since then, at least six states — Kentucky, Mississippi, Ohio, Pennsylvania, South Dakota, and Utah — have passed legislation that excludes either all drug testing equipment or equipment used to test for fentanyl from state paraphernalia laws.

At least 10 of the 15 states where fentanyl test strips remain illegal are actively working to decriminalize their use, according to an email from a representative of the harm reduction organization SAFE Project.

Dr. Cerdá hopes the wave of historically conservative states legalizing drug testing equipment is a harbinger for more widespread acceptance of harm reduction.

“Traditionally harm reduction has fallen along party affiliation lines; it’s thought of as a politically progressive tool and there has been pushback from more conservative policy makers,” she says. “But this provides hope. Lawmakers are seeing that their friends, their family members, are affected — and they are afraid. I think that reality is what is leading to a greater acceptance of fentanyl testing strips.”

Drugs Like Cocaine and MDMA May Be Laced With Fentanyl

According to Andrew Kolodny, MD, the medical director of opioid policy research at Brandeis University’s Heller School for Social Policy and Management in Waltham, Massachusetts, people who have opioid use disorder (OUD) still account for the overwhelming majority of people killed by fentanyl.

“Fentanyl has really overtaken the black market opioid supply. If someone is buying black market opioids, it’s safe to assume it’s fentanyl,” says Dr. Kolodny.

This assumption makes testing opioids for fentanyl less important than testing other illicit drugs, such as cocaine and MDMA, for fentanyl, which people may not expect to be laced with the powerful opioid, but which increasingly are, he says.

A study published in August 2022 in the International Journal of Drug Policy used take-home test strips on more than 1,600 drug samples from 218 people. About 70 percent of the samples were opioids and about 25 percent were stimulants such as cocaine and methamphetamine. The researchers found that not only were take-home test strips as good as professional testing equipment at detecting fentanyl, the deadly contaminant was present in 90 percent of the samples tested.

Fentanyl Disguised as Pills Like Adderall or Xanax Can Be a Special Threat to Teens

Fentanyl is also increasingly being disguised as pills that people are more likely to experiment with than heroin. Teenagers may be particularly at risk.

Research published in April 2022 in JAMA found that the rate of U.S. overdose deaths among teenagers ages 14 to 18 nearly doubled in 2020, and rose another 20 percent in the first half of 2021 compared with the previous decade. This increase is particularly alarming because until then, opioid overdoses had mostly missed teenagers.

Fentanyl has been fraudulently sold as heroin for years, which has primarily affected adults with opioid use disorder. But the researchers traced the recent uptick in overdose deaths among teenagers to fentanyl that was pressed into pills and distributed as common pharmaceutical drugs like Adderall, Xanax, Percocet, and Vicodin, which teenagers are more likely to take casually or for the first time than heroin.

“Right now it’s not the case that you can go to a party and try some pills and think that you are going to be fine. A lot of people are consuming fentanyl without meaning to consume it,” says Cerdá.

Young Adults Who Use Drugs Would Welcome Access to Fentanyl Testing Strips

A small study published in 2018 in Harm Reduction Journal surveyed young adults who use drugs. After being given rapid fentanyl test strips and a short tutorial on how to use them, nearly everyone said they planned to use the test strips. Seventy percent said they were concerned their drugs may be contaminated with fentanyl.

“We know when people sell, they typically sell more than one drug, and since fentanyl has hit our community, we have always told folks that it’s going to be in multiple drugs,” says José Martinez, a harm reduction associate at the National Harm Reduction Coalition.

Research suggests that people who have access to test strips are more likely to take other measures to protect themselves while using drugs, Cerdá says, “for example using less of the drug than they intended to, using it with someone present, or having Naloxone on hand.” Naloxone is a medicine that can rapidly reverse an opioid overdose.

Legislation Is Still Falling Short in Making Rapid Drug Testing Widely Available

Despite legislative wins in broadening access to fentanyl test strips, harm reduction laws are still falling short. The majority of laws being passed are specific to fentanyl test strips, including in four of the six states that have revised paraphernalia laws so far this year, and don’t address rapid testing for other drugs.

Limiting legalization to equipment that tests only for fentanyl is shortsighted, says Davis.

The DEA recently issued a public safety alert that warned of another adulterant that appears to be on the rise: the sedative xylazine. Davis doesn’t expect it to be the last.

“You start playing whack-a-mole and either you’re behind the times or you’re having to go back and modify the law as new drugs become issues,” Davis says.

Martinez says it’s already an issue.

“When we do our drug testing over here, xylazine is in everything, along with fentanyl and other stuff that’s used to cut drugs. In the future, there’s going to be more and it’s going to get worse,” he says.

Harm reduction has an important place in the country’s plan to drastically reduce overdose deaths, which has historically revolved around criminalization, says Martinez, referencing the DEA’s Operation Overdrive, a response to overdose deaths surpassing 100,000 that focuses on dismantling drug networks.

“If everyone’s objective is to keep people alive, I don’t see how criminalizing test strips is going to help,” Martinez says. “These are lifesaving tools.”