Dianne Feinstein (D–Calif.) wants to give the attorney general unprecedented new powers to fight the war on drugs. Credit: Alex Edelman/CNP/AdMedia/SIPA/Newscom
If you think the Department of Justice has more than enough tools to wage the war on drugs, a bill passed by the House would create a fast-track scheduling system that could lead to the criminalization of kratom, nootropics, and pretty much anything that gives you a buzz and isn't already illegal.
The House of Representatives voted on Friday to create a new schedule of banned drugs under the Controlled Substances Act, called "Schedule A," and to give Attorney General Jeff Sessions broad new powers to criminalize the manufacturing, importation, and sale of substances that are currently unregulated, but not illegal. The bill is now headed to the Senate, where co-sponsors Dianne Feinstein (D–Calif.) and Chuck Grassley (R–Iowa) will likely have little problem whipping votes.
The Stop the Importation and Trafficking of Synthetic Analogs Act, or SITSA, is intended to crack down on drugs that closely resemble currently banned or regulated substances in either their chemical structure or intended effects. SITSA would also empower the attorney general (A.G.) to add drugs to this new schedule with few checks from other branches of government.
As its name implies, SITSA is a response to the increased importation of fentanyl analogs—drugs based on the potent opioid fentanyl and that work similarly in the body, but are slightly different at a formulaic level—which have made their way into the U.S. heroin supply and driven overdose death rates to an all-time high.
The bill also marks the biggest federal effort yet to put the analog genie back in its Chinese bottle.
For more than a decade now, legislators, regulators, and law enforcement have been overwhelmed by the endless stream of analog drugs exported to the U.S. by overseas chemical manufacturers. These compounds are very similar to drugs that Congress has already banned or the prescription drugs the Food and Drug Administration (FDA) already regulates: Synthetic cannabinoids are designed to work like marijuana; cathinones are supposed to mimic both illicit and prescription amphetamines; 2cb imbues euphoric effects similar to MDMA; and SARMs work kind of like testosterone.
The Drug Enforcement Administration has long bemoaned the fact that clandestine chemists can create these novel drugs faster than D.C. can ban them. The scheduling process is complicated, as it should be when the government makes things illegal: The DEA has to identify an analog's chemical structure and the scheduled or regulated drug to which it's most similar, then seek input from experts at the Department of Health and Human Services (HHS), then publish a scheduling notice in the Federal Register and review public comments. (Democracy can be such a drag!)
Prosecuting drugs that have not gone through this process of analysis and scheduling, meanwhile, requires overcoming what Sessions recently called "cumbersome evidentiary hurdles," such as chemistry experts who challenge the government's claims and defendants who say they believed they were importing and selling "potpourri" and "bath salts." (These hurdles are also known as "due process.")
While Department of Justice (DOJ) complaints about analogs aren't new, the rise of fentanyl analogs have inspired Congress to act more aggressively and clumsily than usual. The Senate version of SITSA introduced by Feinstein and Grassley gives the attorney general unilateral and unchecked power to add a substance to Schedule A. It contains no congressional review provision and vests no authority in the Department of Health and Human Services to challenge the DOJ's scheduling decision.
When SITSA came up for a vote in the House, the House Liberty Caucus released a statement condemning the decision to "cede more of Congress's legislative authority to the Attorney General and grant the AG more power to fight the war on drugs, which has eroded federalism, eviscerated numerous individual rights, entrenched severe discrimination in our criminal justice system, and failed to meaningfully limit the proliferation of illicit drugs."
Thanks to the advocacy of Rep. Justin Amash (R–Mich.) and others, provisions were added to the House version of SITSA that appear to constrain the attorney general—though they probably won't. "Even with the sponsor's amendment," says the Liberty Caucus's statement, "this bill allows the AG to schedule substances permanently without significant input or involvement by the Department of Health and Services."
More specifically, the Senate bill requires the Attorney General only to notify HHS of a scheduling decision and "take into consideration any comments submitted by the Secretary of HHS." The amended House bill requires that
if the Secretary [of HHS] has determined, based on relevant scientific studies and necessary data requested by the Secretary and gathered by the Attorney General, that a drug or other substance that has been temporarily placed in schedule A does not have sufficient potential for abuse to warrant control in any schedule, and so advises the Attorney General in writing, the Attorney General may not issue a permanent scheduling order and shall, within 30 days of receiving the Secretary's advice issue an order immediately terminating the temporary scheduling order.
The House bill also gives Congress 180 days to write and pass legislation reversing a temporary scheduling order, but says nothing about reversing a permanent scheduling order. Why the House would tie its own hands in a matter like this is mystifying.
The bigger issue here is that the data HHS needs in order to make a recommendation will come from the DOJ, which is not exactly an unbiased source. If an A.G. wants a drug to remain in Schedule A, the data DOJ shares with HHS will likely support that preference, just as the data DOJ prosecutors share with jurors supports their preference for conviction. What's more, there is almost no random-control-trial data for drugs that are not already well into the FDA pipeline. To get that data, researchers would not only have to raise money outside the pharmaceutical system (ask MAPS how hard that is and how long it takes), they'd also have to get the AG's permission to manufacture or study any substance that has been scheduled using emergency powers. As one might expect, SITSA gives the AG wide latitude in determining what drugs are permissible to manufacture and to study.
As the Liberty Caucus statement suggests, the HHS oversight provision in the House bill is toothless, and absent entirely from the Senate version.
In addition to creating a new class of Controlled Substances, both bills give the Justice Department unprecedented power to criminalize compounds that aren't regulated by the FDA or already a Controlled Substance. Here's a brief rundown of provisions common to both versions of SITSA:
Allow the Attorney General to use emergency scheduling powers to place a substance in Schedule A for up to five years, whereas current emergency scheduling powers allow for a maximum ban length of two years. (The additional length of time matters because temporary scheduling is not subject to judicial review.)
The bill's criteria for inclusion in Class A of the Controlled Substances Act is incredibly broad. It includes any substance that is not already scheduled and is chemically similar to any drug in classes I-V (schedule I drugs are illegal save for research that must be approved and supervised by the DEA; drugs in the remaining schedules can be prescribed); has "an actual or predicted" stimulant, depressant, or hallucinogenic effect similar to that of any drug in classes I-V. The methods for determining those similarities are pretty vague in both versions of the bill and will almost certainly be interpreted by the DOJ in a way that makes it easiest for them to do what they want.
If a drug fits the above criteria, and the Attorney General believes that scheduling it under the CSA "will assist in preventing abuse or misuse of the drug or other substance" [itals mine], the A.G. has met all of the criteria necessary to schedule the drug.
SITSA establishes a statutory maximum of 10 years in prison for Schedule A offenders with no prior drug convictions, and 15 years if ingestion of the substance results in "serious bodily injury or death"; those maximums rise to 20 and 30 years if the offender has a prior felony drug conviction.
Importers of Class A drugs will face statutory maximums of 20 years (30 years if they have a prior felony drug conviction), and a maximum of life in prison if consumption of the drug they imported results in serious bodily injury or death.
Despite the use of "synthetic analog" in the bill title, the criteria for inclusion in Schedule A says only "drug or substance."
Fans of the herbal opioid remedy kratom have expressed concerns about SITSA, as have nootropic users and research chemical enthusiasts. The combined vagueness and broadness of this bill should worry all of them. While the immediate justification for the bill is fentanyl, the legislation is so much broader than that. Were coffee and booze not historically entrenched in our culture, this bill would absolutely allow the DOJ to add both caffeine (as a stimulant) and alcohol (as a sedative) to Schedule A of the Controlled Substances Act.
The race to develop drugs that can briefly exist in a legal grey area—not scheduled at the formulaic level, but similar to things that are—is a genuine problem. The cat-and-mouse game between the DOJ and clandestine chemists has led to a downward spiral in quality, safety, and predictability. Batches of spice and K2 that flooded drug stores and head shops in the early 2000s, for example, could be hit or miss; but the synthetic cannabinoids floating around the U.S. now that those early versions are illegal have caused mass hospitalizations.
More potent and deadly than any drug we've seen before, fentanyl analogs are easy to make, cheap to buy, discreetly packaged, and difficult to detect at U.S. ports of entry. While the libertarian response to this phenomenon would be to make safer opioids available to people who want them in conjunction with lifting federal regulations on medications like methadone, naloxone, and buprenorphine, Congress very seldom does the libertarian thing.
What will illicit chemical manufacturers do if SITSA passes? Will they stop exporting to the U.S.? Will they change their packaging and labeling strategies? What will the new race to the bottom of the chem barrel look like? These are questions Congress should be thinking about now. After all, legislators wrote this bill as a response to the crisis they helped create when they encouraged law enforcement and regulators to crack down on prescription pills without considering users might substitute heroin and fentanyl.
Several years ago, Britain passed a similar law banning what SITSA calls Schedule A drugs. The Royal Pharmaceutical Society's Pharmaceutical Journal reported last year that many users of what were once called "legal highs" in the U.K. have since switched to more historically illegal drugs. That substitution effect shouldn't surprise anyone: it explains why people who once crushed pills now shoot fentanyl. And we should expect to see it here if Congress empowers Sessions to add whatever drugs he wants to the Controlled Substances Act.
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