Blog Post

NPS are About to Get Their Own Schedule Under the Controlled Substances Act

Muhammad Rehman

How have our representatives still not learned anything from the failed War on Drugs?  Research shows that criminalization is an ineffective response to drug use, yet our congressmen and women continue to follow the same old draconian path, especially when it comes to dealing with new drugs.

On June 8th, Senator Chuck Grassley (R-IA) and Senator Dianne Feinstein (D-CA) sponsored bill S.1327 to amend the Controlled Substances Act (CSA).  This bill seeks to create a new schedule of drugs (Schedule A) besides the five schedules that are already under the CSA.  Schedule A will host a new category of drugs that are known as Novel Psychoactive Substances (NPS).

NPS are newly emerging drugs that seek to simulate the same effects of widely prohibited drugs such as marijuana, heroin, cocaine, methamphetamine, and opioids. The federal and state governments have rushed to ban these chemicals as soon as they find out about them, but manufacturers continue to change up the variations, so that it can skirt the ban.

Bill S.1327 will allow the Attorney General (AG) to temporarily or permanently put any new drug that has a “chemical structure that is substantially similar to the chemical structure of a controlled substance in schedule I, II, III, IV, or V” as a Schedule A drug.  The temporary scheduling will last a period of 5 years.  A sentence under a Schedule A classification can land a person in prison from anywhere between 10 and 30 years of their life “if death or serious bodily injury results from the use of such substance.” That is a drastic amount of time, creating suffering just because a person made a choice to do what they wanted with their body.  Incarceration will not help but will lead to a vicious cycle of criminalization.

In addition, this bill gives full discretion to the Attorney General to put almost any drug they deem harmful to the public under a ban. It takes the power away from the Drug Enforcement Administration (DEA) to classify drug scheduling, a process that – while flawed – requires scientific review and allows for interested people to submit data and public comment. The absence of a transparent process means the public is denied a forum to speak up for or against substances that can be classified as Schedule A.

Once in schedule A, scientific study of these new substances is all but impossible, meaning we will know even less about their potential harms or about their potential benefits (some NPS have shown promise in treating addiction and other medical conditions).

How does that make any sense?

One person, the Attorney General, will be making decisions for millions of people without any sort of input from them or, more importantly, the research community. AG Sessions already has a proven track record of being punitive on drugs, and this bill will provide him with another tool to go after already vulnerable communities.

This bill shows, that despite progress in some areas, some of our senators are stuck in the same mindset in which criminalization of drugs is always the first response.  We know that enforcement of drug laws and criminalization leads to racial disparities, and this bill will very likely deepen those disparities, hurting vulnerable communities.

A better response by the government is to approach NPS through a public health lens. A public health approach helps people that are using drugs rather than incarcerating and demonizing them.  Our focus should be on tracking, testing, and providing first responders with the health information they need to help and save the lives of those who use synthetic drugs without stigma.

For example, in Wales, they started Welsh Emerging Drugs and Identification of Novel Substances (WEDINOS) in 2009. WEDINOS provides a mechanism to collect and test unknown or unidentified novel psychoactive substances and then provide a thorough analysis, which includes dissemination of pragmatic harm reduction advice to first-responders around Europe.   They also keep a database of all of the drugs that they are testing with the goal of providing the best health-related response to anyone that has used any substance.  The health and safety of individuals is at the forefront.  They are humanizing people by providing the help that they need without stigmatizing them.

The United States has to start doing the same by making sure that we are not disproportionately affecting or inadvertently leaving out disadvantaged communities. We have to start helping people rather than harming them.  We need to make sure that punitive and draconian bills, such as S.1327, are not passed and focus instead on equitable, health-based policy that treats people with dignity.

Muhammad Rehman is a fellow at the Drug Policy Alliance's Office of Academic Engagement.

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