Fentanyl test strips may help save lives. So why are they illegal in many states?

Quick and inexpensive tests that can detect the powerful synthetic opioid are considered "drug paraphernalia" in many states, but lawmakers are working to change that.

A drug user tests a dose of heroin for fentanyl contamination
A drug user tests a dose of heroin for fentanyl contamination. (Bebeto Matthews/AP)

This week, Republican Gov. Tate Reeves signed a bill decriminalizing fentanyl test strips in Mississippi, legislation that he said “will help save lives.” It’s the latest in a wave of states taking action in recent months to decriminalize the tests as the deadly synthetic opioid continues to claim lives nationwide.

What are fentanyl test strips?

Fentanyl test strips are small strips of paper that can detect fentanyl in drugs like cocaine, methamphetamine or heroin, and in different drug forms, such as pills, powder and injectables. The strips can only detect whether fentanyl is present, not how much is there; but they are quick, easy to use and inexpensive, usually giving results within five minutes.

In 2021, the Centers for Disease Control and Prevention announced that federal funding could be used to purchase fentanyl test strips, with the Mental Health and Substance Use Services acting secretary saying that the move could be a life saver. The hope is that the tests will prevent people from using drugs they didn’t know also contained fentanyl and help curb the alarming rise of accidental overdoses in the U.S.

“The powerful synthetic opioid fentanyl is now present in many other drugs like cocaine, methamphetamine, and pills that are labeled as benzodiazepines (e.g. Ativan) or stimulants (e.g. Adderall). As a result, some users of drugs are exposed to fentanyl unintentionally and suffer as a result, including by experiencing fatal overdose,” Dr. Keith Humphreys, a professor of psychiatry and behavioral sciences at Stanford University School of Medicine, said in an email to Yahoo News. “Fentanyl test strips allow people to evaluate whether the drug they have purchased contains fentanyl or not. ... The hope is that people who, say, really just [wanted] to use a benzodiazepine will not use that drug once the test strip tells them that what they really have is fentanyl.”

Why are they illegal?

Fentanyl test strips are illegal in many states under decades-old laws that classify them as “drug paraphernalia.”

“The reason why strips are prohibited in some places is usually because local policymakers believe that the strips will encourage people to use drugs by giving them a sense of security,” Humphreys said. “Scientists don't have any evidence to confirm that this fear has a factual basis.”

“Many consider that fentanyl test strips simply condone drug use instead of serving as a harm reduction strategy and being used as an additional tool to protect people that use drugs from overdosing,” Dr. Silvia Martins, a professor of epidemiology at Columbia University Mailman School of Public Health, explained in an email to Yahoo News.

The Kaiser Family Foundation reported in May of last year that fentanyl test devices were illegal in about half of U.S. states. Since then, more states have taken steps to undo the ban. In January, bills in Pennsylvania and Ohio were signed into law decriminalizing the tests; last month, South Dakota legalized them as well.

Fentanyl test strips
Fentanyl test strips. (Mark Lennihan/AP)

And in states where the testing strips are still illegal, many politicians — including conservatives — have begun warming to the idea of legalizing them. In December, Gov. Greg Abbott, R-Texas, reversed course and said he would now be supportive of legislation decriminalizing the tests.

But for some, it’s still an uphill battle. Gov. Laura Kelly, D-Kan., used her State of the State address in January to appeal to the Republican-controlled Legislature to support the legalization of tests in Kansas after a previous effort was opposed by Senate Republicans last year.

Are fentanyl test strips really effective in the U.S.?

A study by researchers at the Johns Hopkins Bloomberg School of Public Health and Rhode Island Hospital/Brown University found that “the vast majority of people who use street drugs are interested in using drug checking to help prevent overdoses,” and 70% of respondents said “knowing that their drugs contained fentanyl would lead them to modify their behavior.”

The American Medical Association says that products such as fentanyl test strips “are associated with positive health outcomes and may decrease overdose rates,” and that there’s been a public push to make fentanyl testing strips routine for recreational drug users.

Still, some say legalizing the tests may not make much difference. Corey Davis, director of the Harm Reduction Legal Project at the Network for Public Health Law, told the Washington Post that few people were actually getting arrested over the tests because many police departments didn’t know they were illegal. “So beyond spreading the word about the strips and making it easier to access them, the effect of the new laws is pretty minimal,” he said.

It’s true that the laws have often been ignored, with some states even having fentanyl test strip distribution programs while simultaneously having drug paraphernalia laws on the books that make the tests illegal. One analysis from 2021, for example, found that Maine had a program allowing police departments to distribute tests at the same time that they were illegal under state law. And in Washington, a pilot program implemented vending machines distributing free tests, despite the tests being legally considered drug paraphernalia in the state. (A bill dubbed “Allisone’s Law” — named for a young woman who died of a fentanyl overdose after unknowingly taking a Percocet laced with the drug — has passed in the Washington state House and is currently before the Senate; it’s passage would make the tests legal in the state.)

Humphreys told Yahoo News that “even if they were legalized everywhere, fentanyl strips are not going to have a big impact on the number of people who die of fentanyl overdose.”

“Unintentional users are a small part of all fentanyl users. And it’s probably only the more organized and planful users of drugs who would get a test strip in the first place. But for that limited group of people, a test strip might help them avoid overdose from unintentional fentanyl exposure,” he said.

Fentanyl is 50 times stronger than heroin and 100 times stronger than morphine, according to the CDC, and can be deadly even in very small doses. Fentanyl and other synthetic opioids are the most common drugs involved in overdose deaths, with over 150 deaths in the U.S. every day.

While Martins said it’s important to test for fentanyl “as a harm reduction practice before someone uses drugs,” she added that it will require a multi-pronged approach to combat the crisis.

“We need ... increases in prevention strategies, increases in social support, increases in access to health care treatment (including, potentially, universal health care), less stigma towards people that use drugs, linkage to adequate drug use disorder treatment, as well [as] greater acceptance of overdose prevention centers.”