Last May, the U.S. House of Representatives passed the HALT Fentanyl Act, a futile attempt to address the overdose crisis by classifying as Schedule 1 drugs any new analogs of fentanyl (called “fentanyl‐related substances” or “FRSs”) that the drug cartels synthesize in clandestine labs, and increasing mandatory minimum sentences for people found to possess them. As I told the House Judiciary Subcommittee on Crime and Government Surveillance when I testified in March,
Fentanyl is just the latest manifestation of what drug policy analysts call “the iron law of prohibition.”A variant of what economists call the Alchian‐Allen Effect, the shorthand version of the iron law states, “the harder the law enforcement, the harder the drug.” Enforcing prohibition incentivizes those who market prohibited substances to develop more potent forms that are easier to smuggle in smaller sizes and can be subdivided into more units to sell… The iron law of prohibition cannot be repealed. Already we have been getting troubling reports of the veterinary tranquilizer xylazine—drug users call it “tranq”—becoming an additive to fentanyl and other illicit narcotics. This tranquilizer greatly potentiates opioids’ effects, producing more powerful “highs.” Adding this potentiator again enables illicit opioids to be smuggled in smaller sizes and subdivided into more units to sell. (Emphasis added)
Today the White House Office of National Drug Control Policy released a “response plan to address the emerging threat of fentanyl combined with xylazine.” The White House press release revealed that deaths from fentanyl mixed with xylazine—what users call tranq—increased 276 percent between January 2019 and June 2022. By then, roughly 11 percent of all fentanyl‐related overdoses contained xylazine.
The ONDCP plan includes worthy harm reduction recommendations, such as making it easier for users to test their drugs for xylazine. The makers of fentanyl test strips have already developed xylazine test strips, but, unfortunately, many states still outlaw drug testing equipment or devices as drug paraphernalia. While many states have recently removed fentanyl test strips from their list of illegal paraphernalia, their lawmakers would need next to remove xylazine test strips from that list. It would be wiser for states to remove all testing equipment and devices from their lists of banned paraphernalia. Even better, as Minnesota recently did, they should repeal their paraphernalia laws altogether.
The ONDCP plan, however, makes the same mistake that the members of the House of Representatives made when they passed the HALT Fentanyl Act. Their plan proposes to “explore scheduling and other regulatory actions.” From page 9 of the plan:
Progress toward decisions on possible regulatory actions under the Controlled Substances Act, including scheduling of xylazine while simultaneously maintaining the legitimate supply of xylazine in veterinary medicine, and prioritizing facilitation of access to xylazine for research purposes. The government will also consider other potential avenues for prosecuting those who manufacture, import, export, sell, or distribute xylazine in order to support fentanyl trafficking.
Discuss whether any potential regulatory actions should be xylazine‐specific or for a broader class of drugs or pharmacologically similar substances that could replace xylazine as a fentanyl adulterant.
Placing xylazine on the Drug Enforcement Administration’s controlled substances schedule will do nothing to deter its use in the drug trade—any more than designating marijuana, heroin, psychedelics, or FRSs as Schedule 1 has deterred buyers and sellers.
The ONDCP plan also calls for greater efforts to “support interdiction.” The U.S. has been waging war on drugs with greater interdiction efforts for over half a century, and drugs are cheaper, more potent, and more available than ever before. Doing the same thing repeatedly and expecting a different result is incompatible with reality.
Drug prohibition and the dangerous and lucrative black market it creates cause the overdose crisis.
Today’s report on the worsening xylazine crisis validates my admonition to lawmakers last March. The House’s passing of the HALT Fentanyl Act was another example of fighting the last battle. The lawmakers hoped to reduce overdose deaths by designating analogs of fentanyl as Schedule 1 when the drug cartels had already moved on to xylazine. As long as policymakers continue enforcing prohibition, another drug crisis from another drug will be in the queue.
