WASHINGTON — The Trump administration is warning of legal chaos and lost drug trafficking cases if Congress doesn’t pass a law banning deadly fentanyl lookalikes within the next few months.
A temporary ban on fentanyl copycats is set to expire in February, reopening a loophole in U.S. law for similar drugs with slightly-altered chemical structures and even greater potency, officials said on Monday, adding they expect drug traffickers to pounce on the opportunity.
“We are running out of time, and if a solution isn’t found, prosecutors will undoubtedly be hindered, and drug traffickers will undoubtedly be helped,” said Amanda Liskamm, veteran drug prosecutor and director of opioid enforcement in the office of the Deputy Attorney General. The result, she said, would be “confusion and even potential trial losses.”
But while the DOJ urges Congress to act, skeptical Democrats and scientists worry the move could bog down important medical research, including into fentanyl overdose antidotes. Independent legal experts, meanwhile, say expanding prosecutorial powers will most likely do little to actually stem the deadly tide of opioid addiction.
Skyrocketing overdose deaths from fentanyl — a synthetic opioid 50 to 100 times more powerful than morphine — have challenged President Trump’s pledge to end America’s opioid crisis “once and for all.”
Fentanyl and other synthetic opioids killed over 28,000 Americans in 2017, accounting for over a third of all overdose deaths in the U.S., according to government statistics. Trump declared the opioid crisis a public health emergency in late 2017, and last year announced $6 billion in funding to tackle the problem.
In early 2018, the Drug Enforcement Administration took the novel step of placing pretty much all remaining fentanyl-like compounds, known as fentanyl “analogues,” into the same category as heroin, resulting in the scheduling of some drugs that have never even been seen by officials.
Examples of powerful fentanyl analogues include carfentanil, an elephant tranquilizer that’s 1,000 times stronger than heroin, and acetylfentanyl, a designer drug that’s never been licensed for any kind of medical use.
Now, Trump’s DOJ is warning that failure to make the classification permanent risks encouraging drug traffickers to stay one step ahead of the law by tweaking the drug’s chemical structure just enough to make it different from what’s technically outlawed.
Prosecutors’ hands would be strengthened by making the emergency measure permanent, but failure to pass a new law wouldn’t represent a crisis, said Alex Kreit, co-author of Drug Abuse and The Law Sourcebook and professor at Thomas Jefferson School of Law.
“It’s harder to win prosecutions when you’re going after an analogue that hasn’t been specifically scheduled, but it’s not an impossible burden,” Kreit said. “They’d still probably win the majority of cases they’d bring to trial. It would just take more resources for them to do it.”
Bringing a case based on a novel, undiscovered drug analogue means jumping through extra hoops. Specifically, prosecutors have to prove the substance in question is sufficiently close to something that’s been explicitly banned, and that the defendants fully understood what they were doing.
“Unless you pass a law that says, all intoxicants are illegal, chemists will think up substances that are similar but not scheduled”
Some top members of Congress have already expressed support for the new law, including Republican Senator Lindsey Graham of South Carolina.
But others have warned against the risk of placing limits on researchers who might be deterred from pursuing medical studies involving strictly banned chemicals.
“We could imperil research into a more powerful Naloxone, a stronger and better treatment, to save lives of those who have used fentanyl analogues,” said Democratic Senator Dick Durbin at a hearing in June. “Is that what we want to do? I don’t think so.”
Justice Department officials acknowledged Monday that the idea doesn’t sit well with some pharmaceutical researchers, and said they were working to address those anxieties.
“We are very receptive to that concern,” said Martin, assistant administrator of the DEA. “I think we’re trying to eliminate the perception out there in the research community that it’s going to be a hindrance to them to conduct research.”
Regardless of any new legislation, traffickers will find ways to innovate and stay ahead of the law, Kreit said. And the highly lucrative trafficking of fentanyl from places like China and Mexico will continue.
“Unless you pass a law that says, all intoxicants are illegal, chemists will think up substances that are similar but not scheduled,” said Kreit.
Cover: This undated file photo provided by the U.S. Drug Enforcement Administration's Phoenix Division shows a closeup of fentanyl-laced sky blue pills. (Drug Enforcement Administration via AP, File)