Congress Must Act to Keep Illicit Fentanyl and Fentanyl Analogs as Schedule I Drugs

With the release of Centers for Disease Control and Prevention data in December 2020 reporting an increase in overdose deaths during the COVID-19 pandemic, Congress cannot delay in providing the tools for communities across the country to respond to the opioid epidemic. A successful response requires a coordinated approach between all government agencies including law enforcement and state and local health departments.

In 2019, we joined our colleagues around the country and 22 state health departments in calling on Congress to increase access to medication for opioid use disorder treatments. Later that same year, every attorney general in the country signed a letter to Congress from the National Association of Attorneys General endorsing the Federal Initiative to Guarantee Health by Targeting (FIGHT) Fentanyl Act, which would permanently classify fentanyl-related substances as Schedule I drugs. We expect 2020 data to reflect one of the worst years ever in fatal and nonfatal opioid overdoses and are calling on Congress to pass this important legislation.

According to the CDC, overdose deaths involving synthetic opioids — including illicit fentanyl and fentanyl analogs — were nearly 12 times higher in 2019 than in 2013. Synthetic opioids appear to be the main driver for the increased overdose deaths during the COVID-19 pandemic. Fentanyl analogs have varying levels of potency that can pose significant risks to users, especially when mixed with other drugs. Fentanyl analogs are often mixed with other drugs such as heroin, meth, or cocaine without the users’ knowledge, adding a substantial amount of risk. In 2016, 26 individuals overdosed in less than 4 hours in Huntington, W.Va., while using heroin that police later suspected to be mixed with fentanyl. Luckily, quick-acting first responders armed with naloxone, a medication that can reverse an opioid overdose, were able to revive and save all 26 individuals.

In response to the surge of synthetic opioid use and overdose fatalities, the administrator of the Drug Enforcement Administration issued a temporary scheduling order in February 2018 for all fentanyl analogues not already regulated by the Controlled Substances Act as Schedule I with the goal of reducing the devastating uptick in overdose deaths from synthetic opioids. The DEA only classifies drugs, substances or chemicals as Schedule I when there is high potential for abuse and no currently accepted medical use. After this temporary order expired in February 2020, Congress passed a temporary extension but declined to vote on any legislation that would permanently classify fentanyl analogues as Schedule I.

In addition to our fellow attorneys general, several law enforcement partners have recognized the threats that fentanyl analogs pose to public safety. The high potency and risks associated with fentanyl analogs prompted the International Association of Chiefs of Police to pass a resolution supporting legislation to limit the production, trafficking and distribution of illicit fentanyl and fentanyl analogs. As attorneys general, we work closely with state and local law enforcement and rely on their front-line efforts in combatting the opioid epidemic. We echo IACP’s concerns. When asked during his confirmation hearing earlier this year about his view on fentanyl analogues, U.S. Attorney General Merrick Garland replied he was in favor of scheduling or legislation to address the surge in fentanyl analog overdose deaths.

The last temporary extension Congress passed to classify fentanyl analogs as Schedule I drugs will expire on May 6, 2021. After several temporary extensions, decisive action is needed to permanently classify fentanyl analogues as Schedule I. As the opioid epidemic rages on, we urge Congress to swiftly act and pass the FIGHT Act.


Dana Nessel, a Democrat, is the attorney general of Michigan. Dave Yost, a Republican, is the attorney general of Ohio. They jointly led a December 2019 National Association of Attorneys General letter urging congressional support for the FIGHT Fentanyl Act.

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