Fentanyl-related substance scheduling as an effective drug control strategy

Abstract

Fentanyl is now the primary driver of the current opioid crisis. Fentanyl and its analogues are subject to the Controlled Substances Act of 1970, the Controlled Substances Analogue Enforcement Act of 1986 (Federal Analogue Act), state laws, international treaties, and the laws of foreign countries. The appearance of novel psychoactive substances led to further legislative developments in scheduling. New fentanyl analogues proliferated in a manner previously unseen since about 2016. Overdose deaths of these fentanyl analogues prompted the Drug Enforcement Administration to reactively emergency schedule each new fentanyl analogue as it appeared. The international community also acted. Finally, on February 6, 2018, a proactive temporary (emergency) class-wide scheduling of fentanyl-related substances was implemented based upon the fentanyl core structure to save lives. This action spurred a similar action in China. Fentanyl analogues fell dramatically in the marketplace, despite further increases in fentanyl itself. Congress temporarily extended this scheduling, but it will soon expire. Opposition to permanent class-wide was lodged due to concerns over law enforcement overreach, inadequate Health and Human Services input, and hindrance of research. This paper reaffirms the importance of a class-based scheduling strategy while also arguing for increased research of schedule I controlled substances.

Keywords: Controlled Substances Act; class-wide scheduling; fentanyl analogues; fentanyl-related substances; scheduling; temporary scheduling.

FIGURE 1

Chemical structures of AET, DMT, and DET

FIGURE 2

Chemical structures of BD and GHB

FIGURE 3

Number of federal fentanyl and fentanyl analogue trafficking offenders over time prior to the Class‐wide FRS scheduling (Tennyson KM, Ray CS, Maass KT. Fentanyl and fentanyl analogues: federal trends and trafficking patterns. U.S. Sentencing Commission. Jan, 2021. p. 3. https://www.ussc.gov/research/research‐reports/fentanyland‐fentanyl‐analogues‐federal‐trends‐and‐trafficking‐patterns (accessed February 2, 2021) [Colour figure can be viewed at wileyonlinelibrary.com]

FIGURE 4

Marketplace responses to specific U.S. and China fentanyl analogue control actions prior to the class‐wide FRS scheduling (DEA Drug and Chemical Evaluation section) [Colour figure can be viewed at wileyonlinelibrary.com]

FIGURE 5

Regions of the chemical structure of fentanyl described in the definition of a fentanyl‐related Substance (Fentanyl‐related substances, DEA, May 2020. https://www.deadiversion.usdoj.gov/drug_chem_info/frs.pdf (accessed February 2, 2021)) [Colour figure can be viewed at wileyonlinelibrary.com]

FIGURE 6

Number of unique fentanyl‐related compounds in NFLIS‐Drug in 2009‐2019, documenting the beginnings of the decline in FRS by number of different substances after temporary class‐wide scheduling (Tracking Fentanyl and Fentanyl‐Related Compounds Reported in NFLIS‐Drug, by State: 2018‐2019. Dec 2020. NFLIS, DEA. https://www.nflis.deadiversion.usdoj.gov/DesktopModules/ReportDownloads/Reports/NFLISDrugSpecialRelease‐Fentanyl‐FentanylSubstancesStateMaps‐2018‐2019.pdf (accessed February 2, 2021))