Fentanyl Test Kits Save Lives – But Still Illegal in N.C.

In 2017, North Carolina experienced the nation’s second-highest increase in opioid-related deaths. This spike includes a total of 1,118 people who died last year by use of fentanyl and other fentanyl analogues.

Fentanyl is used for post-surgery pain management and is 100 times stronger than morphine, and 50 times stronger than heroin. Analogues (drugs that mimic the effect) of fentanyl have been flooding the black market and are being found in numerous drug supplies of cocaine and heroin users across the nation. Fentanyl and its analogues are supposedly mixed in with cocaine, heroin, and illicitly-obtained prescription drugs so that the drug-seller can market a smaller amount of the drug for the same price, due to enhanced potency.

Officials have responded to the epidemic in a number of ways, including: limiting opioid prescriptions for first-time patients, providing naloxone (an overdose antidote) to drug addicts, and charging the dealers of fentanyl-laced drugs with murder when the laced drugs prove deadly. These are all great ideas, and surely provide some positive impact on people affected by fentanyl poisoning, but they are not too effective at warning a drug user that their drug supply is contaminated with fentanyl. That is why the most effective method North Carolina officials can use to deter, or limit, accidental fentanyl overdoses is by supporting the provision of fentanyl test strips.

One hopes that the legislature did not include drug test kits as drug paraphernalia to discourage drug users from identifying and consuming a deadly substance such as fentanyl.

This year, the North Carolina Harm Reduction Coalition (NCHRC) has distributed 1,296 fentanyl test strips to help drug users determine if their drug supply has been contaminated with the dangerous and deadly drug fentanyl. But closer examination of North Carolina’s general statute casts doubt on whether this charitable act by NCHRC was entirely legal.

The North Carolina Drug Paraphernalia Act deems it a Class 1 misdemeanor for “any person to knowingly use, or to possess with intent to use, drug paraphernalia to … test, analyze, … or otherwise introduce into the body a controlled substance.” Drug paraphernalia is defined to include “[t]esting equipment for identifying, or analyzing the strength, effectiveness, or purity of controlled substances.”

One wonders what the legislature’s motives were when including this definition of drug paraphernalia. Maybe they wanted to prevent drug manufacturers from recording the potency of their product, or maybe they wanted to thwart drug dealers’ plans of gaining extra profit by advertising enhanced strength of a drug. One hopes that the legislature did not include drug test kits as drug paraphernalia to discourage drug users from identifying and consuming a deadly substance such as fentanyl.

These fentanyl test strips are proven to be employed and beneficial when accessible to drug users. A recent study found that 77% of the study’s participants used the test strips that were supplied to them, and 40% of the test-users changed their drug-related behavior as a result of the detection of fentanyl in their drug supply.

In the end, it is up to law enforcement’s discretion as to whether someone in possession of a drug test kit will be charged with a misdemeanor. Many folks can, and probably already do, take the risk of possessing a drug test kit and never be charged with any crime for it. But some people may not be willing to take that risk – a test kit is oftentimes significantly larger than the drugs that it is testing, hence poses a greater chance of the possessor being caught. North Carolina officials have already taken many steps towards limiting and preventing the large amounts of fentanyl-related overdoses, but none of them are as proactive and effective as the provision of fentanyl test strips. So why not alter the N.C. statute that criminalizes the possession of this life-saving technology?