Varying state drug laws create patchwork landscape for efforts to prevent overdose and death

U.S. states vary widely in their laws and legal approaches to managing drug paraphernalia and opioid prevention centers (OPCs), according to new research published by the Center for Public Health Law Research at the Temple University Beasley School of Law. This creates a patchwork of laws that could affect efforts to prevent overdose and overdose death.

The research examines laws that govern drug paraphernalia, with a specific focus on drug checking equipment, such as fentanyl testing trips. State laws can make it difficult for people who use drugs to access drug checking equipment because that equipment may be labeled as objects related to illicit drugs, or drug paraphernalia, and in states where that occurs, possession and distribution of drug paraphernalia is often prohibited by state law.

The research also includes laws that establish overdose prevention centers and state pilot programs for overdose prevention centers.

"Drug paraphernalia laws often create confusion and fear of criminal penalty in public health response aimed at reducing overdose harm and death. In absence of repealing these laws wholesale, clear exemptions for drug checking equipment, like fentanyl testing strips, can serve to increase access to lifesaving interventions as the drug supply landscape continues to evolve," said Jon Larsen, Legal Program Manager at the Center for Public Health Law Research, and a lead researcher on this project.

States typically increase access to drug checking equipment by including exemptions for the equipment from the state's definition of drug paraphernalia.

For example, as of November 1, 2023, 29 states explicitly exempt some form of drug testing equipment from the definition of drug paraphernalia, whereas nine states excluded any drug testing equipment from the definition of drug paraphernalia. Laws in this area continue to evolve, making ongoing research important.

Similarly, 12 states included exemptions for any drug testing equipment meant to determine the presence of fentanyl or fentanyl analog and 14 states specifically excluded fentanyl test strips from the definition of drug paraphernalia.

"We found that states with more expansive exemptions for drug testing equipment, for example excluding any drug testing equipment from the definition of drug paraphernalia, allow for more flexibility in response to evolving trends as new substances are added to the drug supply, threatening overdose and overdose-related death," said Larsen.

"States that do not provide exemptions for drug testing equipment from the definition of drug paraphernalia, potentially criminalize the use of these important tools to combat overdose."

Another approach to managing access to and improving the safety of drug use includes overdose prevention centers (OPCs), also known as safe consumption sites. These centers are intended to lessen the risk of overdose and often also provide access to critical services such as syringe exchange, fentanyl test strip and naloxone distribution, and referrals to treatment for infectious diseases and substance use disorder.

OPCs operate globally, but only two states have laws, Minnesota and Rhode Island, that facilitate the establishment of OPCs and state pilot programs, as of November 1, 2023. The Vermont Senate advanced a bill on May 1, 2024, that would authorize and fund an overdose prevention center in Burlington.

The datasets are part of a project that has identified a series of 84 opportunities for government at all levels to improve and align drug policy in the United States.

"The number of overdose deaths in the United States reached a record high in 2023. These new legal data help us get a more refined view of the way these laws are written, allowing us to research their implications for people who use drugs around the country, so we can change what isn't working and hopefully prevent as many future overdose deaths as we can," said Larsen.