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Why Are Fentanyl Test Strips Still Illegal in Texas?

Families and medical professionals say that the test strips are one of the cheapest and most effective tools at combating the fentanyl crisis. But there’s no pathway in Texas for legalization, which frustrates many.

a drug test to test for fentanyl
Drug tests, used to detect the presence of fentanyl and xylazine in different kinds of drugs, such as cocaine, methamphetamine, and heroin, are seen at St. Ann's Corner of Harm Reduction in New York City on May 25, 2023.
(Angela Weiss/AFP/Getty Images/TNS)
Gov. Greg Abbott signed a handful of bills into law in June that aim to fight the fentanyl crisis in Texas.

One law allows prosecutors to pursue murder charges for some fentanyl deaths; another allows for the distribution of the opioid overdose-reversing drug naloxone on college campuses; and two more are meant to increase awareness on the dangers of the drug that killed five Texans a day last year.

Not included in the legislative package this year, however, was a bill decriminalizing fentanyl test strips, which research has shown to be highly effective at detecting the powerful opioid. A proposal to legalize the strips passed the Texas House with overwhelming bipartisan support in May but died in the Senate.

Families and medical professionals across the country — and Texas — say the test strips are one of the most effective and cost-efficient tools at tackling the fentanyl crisis and saving lives. Most strips on the market in 2021 ranged between 96 percent and 100 percent accuracy.

Abbott has not said if he will ask the Legislature to decriminalize the strips in an upcoming special or regular session.

The strips cost a few dollars each. In states where they’re legal, they are available in vending machines, convenience stores and community health centers — sometimes for free. They can be bought on websites such as DanceSafe, BunkPolice and Amazon, according to the Partnership to End Addiction.

Without a clear path for legalization in Texas, some families are frustrated.

“I’m just upset because we need what’s available to our children,” said Adolph Alvarez, a Tarrant County father whose 18-year-old daughter, Abigail Chagoya Alvarez, died from a fentanyl overdose in 2022. “I’m really enough about talking about it, let’s just do it.”

Texas is one of the few states where test strips are illegal. State after state has decriminalized them since 2018, according to the Network for Public Health Law, which tracks state laws for testing drugs. Since January 2022, at least 16 states have passed laws. More states joined the list this year. Close to 40 states have legalized the strips so far.

The strips are thin and made of paper. To use them, the Centers for Disease Control and Prevention says to mix a small amount of drugs with water and then dip the strip in the solution for about 15 seconds. Next, place the strip on a flat surface and read the results: a single pink line on the left-hand side indicates positive, two pink lines mean negative.

The strips detect fentanyl only in the tested portion of the drugs. It’s possible to test a portion that does not contain fentanyl while the rest contains a potentially lethal amount. It’s commonly called the “chocolate chip cookie effect” and it’s why public health experts warn the tests are not foolproof.

Their illegality dates back to a model law from the 1970s by the Drug Enforcement Administration, which classified as illegal anything linked to taking or making banned substances, said John Woodruff, an attorney with the Legislative Analysis and Public Policy Association.

Supporters of the Texas test strip bill — including families who have lost loved ones to fentanyl overdoses — were disappointed when it didn’t pass in the Senate.

The bill died in the Texas Senate because some lawmakers believed legalizing the strips would give people more confidence to abuse drugs. It did not have the votes to make it out of a Senate panel, Sen. John Whitmire, D-Houston, told The Dallas Morning News in April.

Ju Park, an assistant professor of medicine and epidemiology at Brown University, said fentanyl test strips are important because “people right now have really no idea where and when fentanyl is appearing in the drug supply.”

“So you hear of young people ordering drugs like Adderall or counterfeit molly or whatever they are experimenting with and inadvertently overdosing on fentanyl because it really only takes a very small amount.”

Research shows test strips may help lower the risk of fentanyl overdose among young adults.

“People make more informed decisions when they have access to those tools,” said Megan Reed, a research assistant professor at Thomas Jefferson University. “They might choose not to use the drug, they may choose to use in a different way, so to use less.”

There has not been conclusive research showing if decriminalizing the strips lowers the number of overdoses, according to Park and Reed.

Woodruff, the attorney, said he’s unaware of people being prosecuted for having test strips.

“Sometimes, I think, harm reduction organizations run into problems where they can’t get funding for buying [test strips] because somewhere along the line someone goes, ‘Isn’t that drug paraphernalia?’ And so there’s sort of a chilling effect.”

Lucas Hill, a clinical associate professor at the University of Texas at Austin College of Pharmacy, said language in the paraphernalia law has led to some confusion about the legality of the test strips.

Around 2017 and 2018, Hill said, some rehab programs in Texas were purchasing the test strips with state funds. But the attention drawn to the strips in the past few years has caused a dilemma.

“Advocacy to explicitly legalize fentanyl test strips has unintentionally led to the widespread view that they currently are illegal,” he said.

“This is something that I think a lot of us are still trying to work through.”

In July, a group of bipartisan senators in Congress, including GOP Sen. John Cornyn of Texas, filed legislation to remove the test strips from federal drug paraphernalia statute. U.S. Reps. Jasmine Crockett, D-Dallas, and Lance Gooden, R-Terrell, filed a similar bill in the House of Representatives. If either bill becomes federal law, Texas would not have to pass its own.

Alvarez, the Tarrant County father, wants to see Texas lawmakers take action now.

“If we pass out a million fentanyl test strips, if we save one person,” he said, “it was worth it.”

©2023 The Dallas Morning News. Distributed by Tribune Content Agency, LLC.
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