The bipartisan legislation, sponsored by powerful committee chairs in both chambers of Congress, would allow the attorney general to unilaterally outlaw certain unregulated chemical compounds on a temporary basis. It would create a special legal category for these drugs, the first time in nearly 50 years that the Controlled Substances Act has been expanded in this way. And it would set penalties, potentially including mandatory minimum sentences, for the manufacture and distribution of these drugs.
"This bill provides federal law enforcement with new tools to ensure those peddling dangerous drugs, which can be lethal, are brought to justice," Sen. Dianne Feinstein (D-Calif.), who is sponsoring her chamber's version of the bill with Sen. Charles E. Grassley (R-Iowa), said in an emailed statement. "It also explicitly exempts simple possession from any penalties, instead targeting those who manufacture and traffic these drugs and opioids."
The bill, introduced last week and known as the as the Stop the Importation and Trafficking of Synthetic Analogues (SITSA) Act of 2017, now moves to the Senate Judiciary Committee, which Grassley chairs and where Feinstein is the top-ranking Democrat. The House bill is listed as HR 2851.
Under current law, all psychoactive substances are placed in one of five "schedules" designating the drugs' risk of abuse and medical potential. Schedule 1 is the most restrictive, reserved for drugs such as LSD, heroin and marijuana. Schedule 5 is the least restrictive category, which includes medications such as low-dose codeine cough syrup.
Illicit-drug manufacturers wishing to avoid these designations often make subtle changes to a drug's chemistry, creating slightly different, and hence legal, substances that produce similar psychoactive effects in users.
"Illegal drug traffickers and importers are able to circumvent the existing scheduling regime by altering a single atom or molecule of a currently controlled substance in a laboratory, thereby creating a substance that is lawful, but often highly dangerous, addictive and even deadly," Grassley and Feinstein said in a fact sheet on the Senate bill.
The SITSA Act would create a new schedule, Schedule A, for substances that are chemically similar to already-regulated drugs. The attorney general would be able to place new compounds in Schedule A for a period of up to five years. Critics say this amounts to giving the attorney general the power to unilaterally write federal drug policy.
The bill "gives the attorney general a ton of power in terms of scheduling drugs and pursuing penalties," said Michael Collins, a deputy director at the Drug Policy Alliance. "This is a giant step backwards, and really it's doing the bidding of Jeff Sessions as he tries to escalate the war on drugs."
Under current policy, an attorney general may temporarily schedule a substance for up to two years and only after demonstrating the drug's "history and current pattern of abuse; the scope, duration and significance of abuse; and what, if any, risk there is to the public health."
The new bill extends the temporary scheduling duration to five years for Schedule A substances and eliminates the requirement for analyzing the drug's abuse record and its potential risk to public health.
The bill is partially a response to a spike in overdose deaths from the powerful synthetic opiate fentanyl and chemically similar drugs in recent years. Fentanyl's "uncontrolled synthetic analogues have come to represent the deadly convergence of the synthetic drug problem and the opioid epidemic," Feinstein and Grassley wrote. The bill adds 13 synthetic analogues of fentanyl to Schedule A immediately.
But critics are worried that the bill's language could be used to justify bans on all manner of substances that are not particularly lethal or dangerous. The drug known as kratom is one particular area of concern. Experts say the risks with using the drug are "remarkably low," and people who take it say it has helped them quit using alcohol, opiates and other, much deadlier substances.
Because the drug's primary chemicals act in a fashion similar to some opioids, kratom advocates fear that the new bill would allow the Justice Department to outlaw the drug, as it tried unsuccessfully to do last year.
Some experts say that the fentanyl epidemic is proving to be so lethal that it may be worthwhile to experiment with different legislative approaches, even if they come with drawbacks.
"The fentanyls are so awful that I think it is entirely reasonable to try a fentanyl supply control strategy that has only a very modest chance of success," said Jonathan Caulkins, a drug-policy expert at Carnegie-Mellon University. He added that it might be wise, however, to include automatic sunset provisions to such strategies in case they prove ineffective.