*Erin Daneker
I. Introduction
While the United States continues to grapple with how to best address the opioid epidemic, states are now confronted with how to respond to xylazine. Also known as “tranq,”[1] xylazine is a non-opioid commonly used for veterinary purposes[2] that has infiltrated the illicit drug supply and is often used in conjunction with fentanyl.[3] Xylazine is known for its adverse health effects on humans, including decreased respiratory function and the development of skin lesions that lead to necrosis and may require limb amputations.[4] The Food and Drug Administration has not approved xylazine for human use,[5] nor has Congress or the Drug Enforcement Administration taken action to legislatively or administratively schedule the drug under the Controlled Substance Act (CSA).[6] As a result, xylazine is not a scheduled drug under the CSA and thus eludes federal regulation and presents unique challenges, requiring both the federal and state governments to strategize on how to best prevent drug overdoses. Facing an already lethal illicit drug supply, the federal government,[7] governors,[8] and state legislatures[9] are responding in a myriad of ways, ranging from criminalization and drug scheduling,[10] to the decriminalization of harm reduction strategies such as drug testing strips.[11] Confronting the overdose epidemic requires an all-hands-on-deck approach that embraces policies that address the proliferation of xylazine, as well as strategies that can be used to address future changes in the illicit drug supply.
II. The Federal Government’s Response
In June 2023, the Centers for Disease Control and Prevention reported that xylazine-related deaths first occurred in 2018 and the presence of the substance is now being detected in fatal overdoses at an increased frequency across the United States.[12] This finding has spurred action from both the White House and Congress.
In April 2023, the White House Office of National Drug Control Policy officially designated fentanyl that is adulterated or associated with xylazine as an emerging threat to the U.S.[13] The designation led to the Biden-Harris Administration executing a whole-of-government response[14] that culminated in a National Response Plan to Fentanyl Combined with Xylazine.[15] This plan addressed xylazine testing, treatment and supportive care protocols, comprehensive data systems, strategies to reduce the illicit supply, and rapid research.[16]
Congress has also sought to address the threat of xylazine at the national level by introducing and passing legislation to further research and regulate the drug. For example, Congress passed the TRANQ Research Act,[17] which requires the National Institute of Standards and Technology to research and identify additional methods for the detection and responsible handling of the drug.[18] Another bill, The Combating Illicit Xylazine Act,[19] seeks to list the drug as a controlled dangerous substance within the CSA and to create penalties for its unlawful use and distribution.[20] Adding xylazine to the CSA would then permit the Drug Enforcement Agency to regulate the substance.[21] Congress’s interest in using its legislative powers to address xylazine, whether through additional research, drug scheduling, or both, indicates its awareness of the lethality of the drug and the need for action to assist the states and the nation in tackling this next evolution of the drug epidemic.
III. State Responses
The federal government is not the only actor working to combat the increase in xylazine in the illicit drug market. State governments have also started using their legislative and executive authorities to address the proliferation of xylazine in their communities.
Governors across the country have harnessed their executive powers to respond to xylazine.[22] Some governors have issued executive orders[23] or press releases[24] announcing their intent to schedule xylazine as a controlled substance within their own state-level controlled substance statutes using a regulatory process. Under the regulatory process, states can temporarily schedule a drug when an emergency exists if the statute allows.[25]
State legislatures are also determining how to address the proliferation of xylazine in the illicit drug supply. In an attempt to address the threat immediately, some states have passed[26] or introduced[27] legislation that schedules xylazine as a controlled substance, which frequently attaches criminal penalties. Scheduling a drug can be an effective way to quickly address changes in the drug supply but can also and problematic because it further criminalizes substance use disorder by applying penalties, such as imprisonment and fines, for the possession and use of scheduled drugs.[28]
Some states seek to better understand the extent to which xylazine persists in the drug supply. For example, states can pass legislation that requires a coroner to perform a toxicology screening if the coroner reasonably believes an individual’s death was caused by an opioid or if the person was administered an opioid intervention drug and was unresponsive to the drug.[29] Because xylazine is not an opioid, overdose reversal drugs, such as naloxone, may not be as effective in preventing an overdose death.[30] It is important for states to consider legislation like this because jurisdictions may not currently be testing for xylazine in clinical, forensic laboratory, or toxicology screenings.[31] Results from testing and toxicology screenings can provide jurisdictions with a better understanding of the extent to which xylazine is in the illicit drug supply.
State legislatures are also moving to decriminalize drug testing strips by excluding them from the definition of “drug paraphernalia.”[32] Those states that specifically carve out fentanyl test strips will most likely have to amend their existing statutes to include xylazine test strips, which would otherwise be considered drug paraphernalia of which possession is potentially subject to criminal penalties. To avoid the need to amend the statute to account for drug-checking equipment such as test strips, states could consider exempting all drug test strips from the paraphernalia definition.[33]
As the opioid crisis continues to evolve and as states adjust their strategies to reign in the immediate threat of xylazine, states should also consider the entire continuum of care for substance use disorder. This can include expanding opportunities and access to alternatives to incarceration such as pre-arrest deflection, diversion, drug courts, and low-barrier entry to treatment.[34]
IV. Conclusion
Xylazine is the newest substance to enter the illicit drug supply, and both federal and state governments need to act with urgency. However, both authorities should bear in mind that the drug supply will likely continue to evolve. No one legislative or executive action will curtail illicit drug use, so the federal and state governments must continue to find innovative ways to address the issue. The federal and state governments would be wise to not only implement strategies to address the current threat of xylazine but also engage in long-term planning to address further evolutions of illicit drug use.
Photo Credit: Center for Disease Control and Prevention
*Erin Daneker is a second-year evening student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review and a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society. In addition to being a law student, Erin currently works full-time as a policy analyst at the National Governors Association. Erin received her bachelor’s degree in political science and public policy from St. Mary’s College of Maryland. Like millions of Americans, Erin has lost a family member to the opioid epidemic. She encourages people to carry an overdose reversal medication, such as naloxone, and treat people who use drugs with compassion.
[1] Drug Enf’t Admin., DEA-DCI-DIR-001-023, The Growing Threat of Xylazine and its Mixture with Illicit Drugs (2022).
[2] Id.
[3] Id. at 1.
[4] Id. at 2.
[5] See id. at 1.
[6] 21 U.S.C. § 812.
[7] See infra Section II.
[8] See infra Section III.
[9] See infra Section III.
[10] See infra Section III.
[11] See infra Section III.
[12] Mbabazi Kariisa, et al., Illicitly Manufactured Fentanyl-Involved Overdose Deaths with Detected Xylazine – United States, January 2019-June 2022, CDC (June 30, 2023), https://www.cdc.gov/mmwr/volumes/72/wr/mm7226a4.htm.
[13] Press Release, The White House, Biden-Harris Administration Designates Fentanyl Combined with Xylazine as an Emerging Threat to the United States (Apr. 12, 2023), https://www.whitehouse.gov/ondcp/briefing-room/2023/04/12/biden-harris-administration-designates-fentanyl-combined-with-xylazine-as-an-emerging-threat-to-the-united-states/.
[14] See generally id.
[15] Off. of Nat’l Drug Control Pol’y, Exec. Off. of the President, Fentanyl Adulterated or Associated with Xylazine Response Plan (July 2023), https://www.whitehouse.gov/wp-content/uploads/2023/07/FENTANYL-ADULTERATED-OR-ASSOCIATED-WITH-XYLAZINE-EMERGING-THREAT-RESPONSE-PLAN-Report-July-2023.pdf.
[16] Id.
[17] Testing, Rapid Analysis, and Narcotic Quality Research Act of 2023, Pub. L. No. 118-23, 137 Stat. 125.
[18] Id.
[19] Combating Illicit Xylazine Act, S. 993, 118th Cong. (2023).
[20] Id.
[21] Lisa N. Sacco & Hassan Z. Sheikh, Cong. Rsch. Serv., IN12086, Xylazine: Considerations for Federal Control 1 (2023).
[22] See State and Federal Actions to Respond to Xylazine, Nat’l Governors Ass’n (May 9, 2023) https://www.nga.org/news/commentary/state-and-federal-actions-to-respond-to-xylazine/.
[23] E.g., Ohio Exec. Order No. 2023-08D (Mar. 28, 2023), https://content.govdelivery.com/attachments/OHIOGOVERNOR/2023/03/29/file_attachments/2451030/Signed%20EO%202023-08D.pdf; 27 Del. Reg. Regs. 7 (July 1, 2023).
[24] E.g., Press Release, Governor Shapiro Directs Administration to Schedule Xylazine as a Controlled Substance, Taking Action Against Dangerous Drug Contributing to Opioid Overdoses (Apr. 18, 2023), https://www.governor.pa.gov/newsroom/governor-shapiro-directs-administration-to-schedule-xylazine-as-a-controlled-substance-taking-action-against-dangerous-drug-contributing-to-opioid-overdoses/.
[25] See, e.g., Ohio Rev. Code Ann. § 119.03(G) (West 2022) (describing the governor’s powers to authorize “the immediate adoption, amendment, or recission of a rule” when an emergency exists).
[26] E.g., S. 0738, 2023 Sess. (R.I. 2023) (codified at R.I. Gen. Laws § 21-28-2.08 (2023)) (scheduling xylazine as a Schedule V drug); S.B. 546, 86th Leg., 2023 Reg. Sess. (W. Va. 2023) (codified at W. Va. Code § 60A-2-210 (2023)) (scheduling xylazine as a Schedule IV drug); S.B. 189 152nd Gen. Assemb. (Del. 2023) (codified at Del. Code. Ann. tit. 16 § 4718 (2023)) (scheduling xylazine as a Schedule III drug).
[27] E.g., H.B. 3873, 103rd Gen. Assemb. (Ill. 2023) (classifying xylazine as a Schedule II drug); S. 3902, 220th Leg. (N.J. 2023) (classifying xylazine as a Schedule III drug).
[28] See Aila Hoss, Decriminalization As Substance Use Disorder Prevention, 51 U. Tol. L. Rev. 477, 483–84 (2020).
[29] See H.B. 1286, 123rd Gen. Assemb. (Ind. 2023) (codified at Ind. Code § 36-2-14-6).
[30] See Drug Enf’t Admin, supra note 1, at 3; Kariisa, supra note 12.
[31] See Drug Enf’t Admin, supra note 1, at 1.
[32] E.g., H.B. 287, 2023 Sess. (N.H. 2023) (exempting drug testing strips from the definition of drug paraphernalia); S.B. 189 152nd Gen. Assemb. (Del. 2023) (exempting drug testing strips from the definition of drug paraphernalia).
[33] See generally Fentanyl Test Strips, Legis. Analysis & Pub. Pol’y Ass’n (May 2021), https://legislativeanalysis.org/wp-content/uploads/2021/06/Fentanyl-Test-Strips-FINAL.pdf (describing the legal challenges of the use of fentanyl test strips).
[34] See, e.g., Nat’l Governors Ass’n, Implementing Best Practices Across the Continuum of Care to Prevent Overdose (Aug. 2023), https://www.nga.org/wp-content/uploads/2023/08/2023Aug_Roadmap_Best_Practices_Prevent_Overdose.pdf; Deflection and Pre-arrest Diversion to Prevent Opioid Overdose, Nat’l Couns. for Mental Wellbeing, https://www.thenationalcouncil.org/program/deflection-and-pre-arrest-diversion-to-prevent-opioid-overdose/ (last visited Mar. 20, 2024); David Lucas & Aaron Arnold, Court Responses to the Opioid Epidemic: Happening Now, Ctr. for Ct. Innovation (Jul. 2019), https://www.innovatingjustice.org/sites/default/files/media/document/2019/Handout_HappeningNowOpioid_07172019.pdf.
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