By Jason Pye | Due Process Institute | Director, Rule of Law Initiatives
There’s no denying that an opioid crisis has taken a toll on the country. More than 107,000 people died from drug overdoses in 2021, nearly 70,000 of them as a result of synthetic opioid-related overdoses. Understandably, people are searching for solutions to this crisis, and one of the proposed federal legislative solutions is to designate fentanyl and fentanyl-related substances (FRS) as “weapons of mass destruction.” This particular idea is a relatively recent phenomenon but is one that has gained traction because of a nationwide desire to stem drug overdose deaths and the devastation wreaked upon families and communities by fentanyl. However, designating fentanyl as a weapon of mass destruction would be redundant based on current law and would stifle research into FRSs that could have a medical benefit.
This ill-conceived proposal is being raised as part of lawmakers’ conversations over the classification of fentanyl and FRS. Our federal government has established a legal classification system for drugs, which determines the circumstances under which a drug may be considered legal (if any). These classifications represent our government’s views about a substance’s medical value as well as its perceived risks. Fentanyl is a synthetic opioid that is exponentially stronger than morphine and therefore it is a critical pain management tool for the medical community. But there’s also no question that the drug’s illicit manufacture and combination with other substances (heroin, cocaine, etc.) is responsible for an ever-increasing amount of harm to our society. Therefore, our government has classified fentanyl itself as a Schedule II substance, meaning that it represents a high potential for abuse but it also provides important medical benefits. Despite fentanyl’s classification as Schedule II, in 2018, the Drug Enforcement Administration used its regulatory authority to temporarily schedule all fentanyl-related substances (FRS) as Schedule I substances, which means that they have a high potential for abuse but offer no medical benefit. Congress has periodically extended this nonsensical class-wide scheduling of all fentanyl-related substances as having no medical benefit because of the lack of a bipartisan solution that could pass both chambers given the political sensitivities surrounding the opioid crisis. The extension of the class-wide scheduling of fentanyl-related substances is set to expire once again at the end of 2022 and it’s currently looking like our non-functioning Congress will once again extend it as the political divide grows between those who wish to be seen as “tough on crime” versus those who wish to engage in more nuanced policymaking.
Fentanyl as WMD
In September 2022, a bipartisan group of 18 state attorneys general joined a letter to President Biden urging him to classify fentanyl as a weapon of mass destruction. The letter states, “Designating fentanyl as a weapon of mass destruction would require the Department of Homeland Security and the DEA to coordinate with other agencies or parts of agencies, including the Department of Defense, about fentanyl.” It was under President Trump’s administration (February 2019) that the Countering Weapons of Mass Destruction Office of the Department of Homeland Security reportedly prepared a memo that first made the case for treating fentanyl and FRS as a weapon of mass destruction. The author of the memo, then-Homeland Security Assistant Secretary James McDonnell, wrote, “Fentanyl’s high toxicity and increasing availability are attractive to threat actors seeking nonconventional materials for a chemical weapons attack.” Despite the memo, no additional executive branch movement on the idea appears to have taken place. However, there have been some legislative proposals in support of the plan, including “sense of the House” resolutions—H.Res. 1172 and H.Res. 1327—which aren’t binding—and two bills: Fentanyl is a Weapon of Mass Destruction (WMD) Act, H.R. 8030, and the Stop Our Scourge Act, H.R. 9162. The Fentanyl is a WMD Act would require the Countering Weapons of Mass Destruction Office to treat fentanyl as a weapon of mass destruction as defined by 6 U.S.C. § 590. The Stop Our Scourge Act, according to the press release from the bill sponsor’s office (the text of the bill hasn’t been published yet), “would direct the Secretary of Homeland Security to designate illicit fentanyl as a weapon of mass destruction [and would] require the head of the Office of National Drug Control Policy to conduct an assessment of how Federal efforts to address trafficking can be improved, the capacity of the Mexican military to conduct counterdrug missions for illicit fentanyl, and the capacity and willingness of the People’s Republic of China (PRC) to curtail the flow of illicit fentanyl and hold traffickers accountable.”
The potential use of fentanyl and FRS as a chemical weapon by state and nonstate actors has been frequently mentioned by those who advocate for its treatment as a weapon of mass destruction. For example, Russian authorities used weaponized fentanyl during the 2002 Moscow theater hostage crisis. (Not only did the gas disorient the Chechens who took control of the theater, but it also killed several dozen hostages.) However, as the Congressional Research Service pointed out, specifically classifying fentanyl and FRS as weapons of mass destruction is redundant based on current law.[1]
In 1998, Congress passed the Chemical Weapons Convention Implementation Act. The law made it unlawful to knowingly “develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, a chemical weapon” or “to assist or induce…or attempt to conspire” an individual to do so. Violations of the prohibition include fines and/or imprisonment. (There isn’t a specific term of imprisonment in the statute, but the Sentencing Guidelines recommend 33 months to life, depending on the seriousness of the offense, the criminal history of the defendant, and many other factors.) Violations that result in the death of another individual are punishable by death or life imprisonment. Although fentanyl and FRS aren’t expressly listed in the Annex on Chemicals, the weaponization of any substance and the acquisition, transfer, receipt, ownership, possession, or use of any such weaponized substance would result in the substance being legally considered a chemical weapon and subject to the aforementioned penalties. Therefore, it just isn’t necessary to specifically designate these substances in the law in order to seek prosecution of those who would weaponize fentanyl or its related substances.
I also note that the argument set forth by the plan’s proponents that designating fentanyl and FRS as weapons of mass destruction would prompt federal agency coordination on responding to the drug’s illicit manufacture and distribution is specious because of how existing government entities actually function.
A briefing published by the Center for the Study of Weapons of Mass Destruction also casts doubt on the fentanyl as WMD proposal, concluding, “[t]t is not evident that there is any basis or need for, or net benefit to, officially designating fentanyl compounds as weapons of mass destruction, however that may be defined, at least for the Department of Defense.” (Emphasis added.) The brief also notes, “[s]ince fentanyl and several of its analogues are widely used for legitimate medical purposes, unlike traditional chemical warfare agents and some of their precursors, particular attention should be given to determining whether any explicit designation of fentanyl compounds as WMD would pose problems for the legitimate trade in fentanyl.”
In addition to being unnecessary, a decision to designate fentanyl-related substances as weapons of mass destruction is likely even more problematic than the current flawed class-wide treatment of them as Schedule I substances. One of the significant disadvantages related to the current approach is that it significantly inhibits potentially beneficial research into fentanyl-related substances. The already difficult process for approval to research fentanyl-related substances was highlighted in an April 2021 report published by the Government Accountability Office:
“While DEA has approved all 28 researchers who applied to study fentanyl-related substances since 2018, representatives from research organizations we interviewed and articles we reviewed indicated that a Schedule I designation can hinder research on such substances. For example, according to federal officials and representatives from three research organizations, the process for obtaining approval from DEA to conduct research on Schedule I substances can be time consuming and confusing. This process includes the need to obtain approval from states and institutions (such as universities), as well as the time for DEA and FDA to conduct their reviews. In addition, according to representatives from five research organizations we met with and articles we reviewed, the time and resources it takes to meet these requirements may result in less research being conducted on both what makes these substances dangerous as well their possible use in medical treatments. Officials at NIH and some research organizations we spoke with stated that it can take more than a year to gain all of the necessary approvals to conduct research on Schedule I substances in general.”
An October 2022 letter from scientists and researchers noted that fentanyl, by itself, is classified under Schedule II and therefore has an approved medical use and that other fentanyl-related substances, like remifentanil and sufentanil, also have proven medical uses. The letter goes on to explain:
“In a December 2021 House hearing, the Food and Drug Administration (FDA) testified that it had identified 44 FRS and studied 25, reporting that some of the substances . . . were inert, and at least one of the substances was not psychoactive and behaved like naloxone, meaning it could potentially help reverse the effects of an opioid overdose.”
As the Acting Director of the Office of National Drug Control Policy, Kemp Chester, who has served in the office since October 2015, explained before a House subcommittee: “we have gathered up an entire class of substances, uncreated, that within that class of substance, there may be substances that either have medical merit or are not the least bit harmful. They’re not any more harmful than water.” Medical experts agree that our current approach to treating fentanyl related substances like they’re all the same and that they’re all more harmful and less beneficial than fentanyl itself is already holding us back as a nation; having all of these substances thoughtlessly designated as weapons of mass destruction would be taking an already bad idea to an even more illogical extreme.
I close with yet another serious concern with designating fentanyl as a weapon of mass destruction. As law enforcement recognizes, many users don’t even know fentanyl is in the drug they are consuming. Considering that the mere possession of weapons of mass destruction is a serious criminal offense, a significant number of people could be inappropriately criminally charged for possession of a WMD despite their lack of knowledge. This could dramatically increase our nation’s already unsuccessful “war on drugs,” which has overly relied on incarceration to address the public health crisis of drug abuse and addiction.
The opioid crisis is having such a devastating impact on us that it is understandable why some are advocating for what they hope is a meaningful solution. But the push for designating fentanyl and its analogues as a weapon of mass destruction unfortunately presents more problems than solutions. Instead, we support the Temporary Emergency Scheduling and Testing of Fentanyl Analogues Act, recently introduced by Sen. Cory Booker (D-NJ). This legislation would extend the current scheduling of fentanyl-related substances for another two years, but importantly it would also urge further research and testing on fentanyl-related substances that have been encountered but not yet evaluated to determine whether these substances are actually harmful and whether they contain any medical benefits. The bill would then require fentanyl-related substances to be rescheduled appropriately according to the results of the research. Together with existing successful efforts to target international drug traffickers[2] as well as continued (and hopefully increased) investments in drug rehabilitation programs, the Temporary Emergency Scheduling and Testing of Fentanyl Analogues Act is part of a reasoned approach to fentanyl and fentanyl-related substances that has been missing in national political debate.
[1]The Congressional Research Service has noted that existing statutes “broadly cover weapons that can cause mass casualties through the release of ‘toxic or poisonous weapons or their precursors’ as well as biological and radioactive materials, but do not list specific substances of concern, including fentanyl.”
[2]President Biden, in December 2021, issued an executive order that utilized the International Emergency Economic Powers Act, in addition to other statutes, to target international drug traffickers through economic sanctions. In addition, an agreement the previous administration brokered with China appears to have also dramatically reduced the amount of finished fentanyl from China.