House passes temporary extension for regulating fentanyl as Schedule 1 drug

Consensus on a long-term or permanent solution hasn’t emerged

A Drug Enforcement Administration chemist checks confiscated items containing fentanyl at the DEA Northeast regional laboratory on Oct. 8, 2019 in New York. (Don Emmert / AFP via Getty Images)
A Drug Enforcement Administration chemist checks confiscated items containing fentanyl at the DEA Northeast regional laboratory on Oct. 8, 2019 in New York. (Don Emmert / AFP via Getty Images)
Posted April 21, 2021 at 4:40pm

The House passed legislation by voice vote Wednesday to extend an expiring provision related to the deadly synthetic opioid fentanyl, which was responsible for a large share of drug overdoses in recent years, although senators prefer a different approach.

Both chambers have introduced multiple bills that would extend the regulation of fentanyl for varying lengths of time. Currently, fentanyl is listed as a Schedule 1 drug, meaning it has a high potential to be abused and does not have a medical use.

Fentanyl’s classification expires May 6, which has worried many lawmakers who point to the record number of overdose deaths last year. At least 87,000 individuals died of drug overdoses over the 12-month period ending in September, according to data released last week, with the Centers for Disease Control and Prevention predicting that number could reach over 90,000.

Schedule 1 drugs like fentanyl or LSD carry mandatory minimum sentencing — a point that concerns some Democrats. Lawmakers from both sides also say they want to ensure that the restrictions on the drug do not limit research on chemically similar drugs or analogues.

Criminal justice groups and some Democrats have said the classification should expire because mandatory minimums lead to racial disparities in the criminal justice system.

The House passed its bill under suspension of the rules Wednesday afternoon. A newly revised version of the bill would extend the drug’s status as a Schedule 1 drug until Oct. 22, by which time proponents say they could have a comprehensive bill.

Some House Republicans supported the bill but are pushing for a more long-term solution.

House Energy and Commerce ranking member Cathy McMorris Rodgers, R-Wash., said during the floor debate that she would support a short extension but is focused on a longer-term solution.

"This short-term extension from the Democratic majority fails to meet the gravity of the situation facing our communities, our borders and our country," she said. "They've had two years, two years, to come to the table and work with us on a permanent solution to combat fentanyl."

Most Democrats at a House Energy and Commerce Health Subcommittee hearing last week appeared to want to accommodate Office of National Drug Control Policy acting Director Regina LaBelle's request that Congress give the agency time to come up with a policy proposal with other federal agencies like the Department of Justice. LaBelle did not estimate how long of a temporary extension would be necessary.

Other approaches

The Senate has also moved forward with advancing an alternative bill by Sens. Charles E. Grassley, R-Iowa, and Maggie Hassan, D-N.H., that would extend the classification for 14 months.

“This is an extension long enough for us to have bipartisan, complete, and thoughtful discussions on how to address fentanyl-related substances. Anything less is surely setting ourselves up for failure and another temporary extension later in the year,” said Grassley in a letter to Majority Leader Charles E. Schumer of New York on Monday.

But consensus on a path forward hasn’t emerged.

Minority Leader Mitch McConnell, R-Ky., called on the Senate floor on Monday for a permanent scheduling solution.

“I understand that even among Democrats who say they don’t want to decriminalize these poisons, there is some effort to kick the can a few months with a temporary extension, so that a soft-on-crime bill could be crafted and forcibly paired with this step,” said McConnell. “We should not just kick the can two months, or five months, or 12 months down the road.”

Sens. Rob Portman, R-Ohio, and Joe Manchin III, D-W.Va., have their own bill that would permanently make fentanyl a Schedule 1 substance, but includes language that prohibits mandatory minimum sentencing.

A Portman spokesperson said it was unclear how the fentanyl scheduling policy would be resolved but the senator is continuing to push for a permanent policy fix.

A previous temporary extension last year passed unanimously in the Senate but faced pushback from House Democrats.

An aide for Grassley called it surprising that differences in the Senate arose this year.

“Grassley’s bill extended the authority for 14 months to avoid an expiration during the 2022 August work period,” said spokesperson Taylor Foy. “It’s a tall order to reach a policy agreement by September, especially as some Senate Democrats who backed the last extension now prefer to let the authority expire.”

Democrats are also splintered over how to approach the process.

Five Senate Democrats led by Sen. Cory Booker, D-N.J., wrote to President Joe Biden earlier this month, arguing that drugs chemically similar to fentanyl are already illegal even if the scheduling lapses under a 1986 law known as the Federal Analogue Act. They say renewing the classification will limit research and disproportionately subject more people of color to mandatory minimum sentences.

“For example, just a trace amount of a fentanyl analogue in a mixture with a combined weight of 10 grams — 10 paper clips— can trigger a five-year mandatory minimum, with no evidence needed that the seller had any knowledge that the substance contained fentanyl,” the senators wrote.

White House Press Secretary Jen Psaki said last week the president does not want the fentanyl legislation to expire and is in the midst of discussions on a path forward. 

“I would just reiterate that we are committed to avoiding expiration of this legislation, but we also have expressed legitimate concerns related to some components of it, including mandatory minimums,” she told reporters.

Judiciary Committee member Sheila Jackson Lee, D-Texas, said on the House floor Wednesday that she had concerns about the policy but hopes to work with the Energy and Commerce Committee on a long-term solution.

"I am concerned that we might be extending the Trump administration's temporary classwide emergency scheduling of fentanyl," she said.