Drug Checking and US Law

"Perhaps our most significant finding is that all of this SSP’s success in implementing drug checking was achieved in spite of, rather than thanks to, the legal and policy environment in which it operates. The COVID-19 pandemic made drug checking practically impossible, but only after systematic police violence against participants and threats against staff had already curtailed provision of this harm reduction service. Indeed, it is likely that drug checking could have persisted during the pandemic absent the very real risk of police interference. This finding mirrors that of qualitative pre-implementation studies of drug checking services in Canada and the United States, which found the criminalization and stigmatization of substance use to be the most likely barriers to implementation [31, 32].

"There is clear, scholarly consensus that law enforcement and criminal justice responses to substance use exacerbate—and sometimes even generate—the individual-level harms of substance use [37,38,39,40,41,42]. This study demonstrates in striking terms how essential harm reduction organizations are equally vulnerable to the misguided, punitive responses so often directed at the people they serve. Policymakers have not sufficiently protected harm reduction efforts from state violence. Stricter, more reliable, more enforceable protections against the impacts of drug criminalization are desperately needed. De-criminalization of substance use remains an effective strategy for resolving these and other related concerns [43, 44].

"Another barrier was the ambiguous legal status of drug checking activities. Some states have enacted laws that unambiguously legalize the distribution of fentanyl test strips but fail to clarify the legal status of using advanced technologies like portable spectroscopy devices for the same purpose (examples include Illinois Public Act 101–0356 and North Carolina § 90–113.22). As of May, 2021, at least 10 U.S. states had legislation pending that would create a legal framework for some drug checking activities [45]. In light of the fact that the U.S. Department of Health and Human Services (HHS) explicitly endorsed community drug checking by permitting grantees to spend federal funds on fentanyl test strips [46], any absence of a legal framework for making use of those technologies, including in Massachusetts where this study took place, is particularly glaring. This study demonstrates the importance of providing a clear legal framework for community drug checking with any technology."