September 25, 2023
Senate Majority Leader Chuck Schumer
322 Hart Senate Office Building
Washington, DC 20510

Senate Minority Leader Mitch McConnell
317 Russell Senate Office Building
Washington, DC 20510

Cc: Senate Judiciary Committee Chair Dick Durbin and Ranking Member Lindsey Graham
RE: Cosponsor the Temporary Emergency Scheduling and Testing of Fentanyl
Analogues Act of 2023 (TEST Act)Dear Senate Majority Leader Schumer, Senate Minority Leader McConnell, Chairman
Durbin, Ranking Member Graham, and Honorable Members of the U.S. Senate:We, the undersigned health policy, drug policy, criminal justice reform, civil and humanrights, and advocacy organizations, write today to urge you to cosponsor and support swift
passage of the Temporary Emergency Scheduling and Testing of Fentanyl Analogues Actof 2023 (TEST Act). This bill would allow the Drug Enforcement Administration (DEA) toplace new fentanyl-related substances (FRS) in Schedule I for up to four years, during
which time the Department of Justice (DOJ) and Health and Human Services (HHS) would
have to conduct a scientific and medical evaluation of each substance and publicly reportthe findings.
As you know, Congress has preemptively placed all FRS on Schedule I of the Controlled
Substances Act (CSA) as a class – even those that do not exist. Congress has consideredcircumventing the scientific research requirements under current law by passing bills such as
the HALT Fentanyl Act (H.R. 467), which would automatically designate any FRS as
dangerous without studying a substance at all. Temporary scheduling authority is intended
to allow the DOJ the time to conduct the scientific and medical evaluations it is required toby law. By allowing DOJ to designate the entire class of FRS as Schedule I without
conducting scientific and medical research, Congress may inadvertently leave
undiscovered therapeutic medications similar to naloxone and other life-saving
medications at a time when the U.S. is facing record numbers of overdose deaths.
Schedule I is reserved for the most harmful drugs with no medical use, carrying theharshest criminal penalties and barriers to scientific research. We believe Congressshould pass the TEST Act, which would create a statutory period of up to four years forthe DOJ to conduct the scientific and medical evaluation of a substance, facilitate theresearch of FRS, and ensure that substances are placed on the drug schedule according
to their scientific profile and potential for abuse.
Permanent classification of FRS on Schedule I, without first studying the pharmacologicaleffects and epidemiological data of the individual substances, would set an alarming
precedent in U.S. drug scheduling. Since 1970, the federal government has conducted ascientific evaluation of all controlled substances in order to understand if or where on thedrug schedule a particular substance should be classified.1 In order for a substance to beplaced on Schedule I, the DEA must determine it has potential for abuse and no approved
medical use.2 Further, the Attorney General must request a scheduling recommendationfrom the Secretary of HHS based on an eight-factor medical and scientific analysis.3
Yet, some are advocating for the federal government to break this precedent and makepermanent the classwide scheduling of FRS on Schedule I without conducting individual
testing of each uniquely identified chemical compound or novel substance, despite
acknowledging that not all substances are similar and harmful. According to the DEA, it
had identified 36 FRS as of December 2022.4 Of those, 24 had been studied and 10 werecurrently being studied. The DEA has publicly stated that at least one substance studied had
no pharmacological effect and could even be a life-saving treatment like naloxone.5 Despite
these findings, the DEA has not made public the scientific and medical evaluations of thesesubstances nor has it completed testing of the rest of the group.
Moreover, HHS has previously undertaken a review of the FRS class, but it could notprovide findings because of the vast number of hypothetical FRS and more importantly,
because it had identified examples of substances in the class that acted as opioidantagonists, which are used to treat opioid dependence.6 In fact, HHS has said researchwith FRS and other synthetic opioids “may be important to the development of new andimproved treatments for opioid addiction and overdose, chronic pain, and other neurologic
and psychiatric conditions, as well as to understanding the effects these substances haveon human health.”7 The indiscriminate placement of all FRS on Schedule I means thatpeople will be deterred from researching FRS and/or may potentially be incarcerated foractivities related to benign or even beneficial substances.
The criminal legal impact of permanent FRS scheduling will be severe. Permanent FRS
scheduling would entrench mandatory minimum sentences for distribution and importation of
FRS—imposing harsh fentanyl-analogue mandatory minimums (mandatory minimums thatare four times harsher than the mandatory minimums applicable to fentanyl itself) on
thousands of substances based on molecular structure alone. Many current permanent FRS
scheduling proposals, including the HALT Fentanyl Act, would also expand mandatory
minimums beyond where they have ever (even temporarily) been before, creating new
1
Drugs of Abuse, A DEA Resource Guide (2020 Edition), Drug Enforcement Administration, U.S.
2

Drug Enforcement Administration, U.S. Department of Justice (2020),
https://www.dea.gov/sites/default/files/2020-04/Drugs%20of%20Abuse%202020Web%20Version-508%20compliant-4-24-20_0.pdf.
3
21 U.S.C. § 811(b)4Letter from Drug Enforcement Administration to Senator Cory A. Booker, Dec. 2022.
5
Statement of Douglas G. Throckmorton, M.D., Dep. Dir. for Regulatory Programs, Center for Drug
Evaluation and Research, U.S. FDA, The Overdose Crisis: Interagency Proposal to Combat Illicit FentanylRelated Substances: Hearing Before the Subcomm. on Health of the H. Comm. on Energy and Commerce,
117th Cong. at 40 (Dec. 2, 2021), https://docs.house.gov/meetings/IF/IF14/20211202/114265/HHRG-117IF14-Transcript-20211202.pdf.
6
Testimony of Sandra D. Comer, Ph.D., Pub. Policy Officer, Coll. on Problems & Drug Dependence,Before the Subcomm. on Crime, Terrorism & Homeland Sec., H. Comm. on the Judiciary at 3 (Jan.
28, 2020), https://docs.house.gov/meetings/JU/JU08/20200128/110392/HHRG-116-JU08-WstateComerS-20200128.pdf.
7
Dep’t of Health and Human Services, Letter to Senator Richard Durbin in Response to July 10, 2019
Letter, Oct.31, 2019.

mandatory minimums for trafficking in listed fentanyl analogues. Permanently entrenching
mandatory minimums for FRS would represent an unprecedented application of mandatory
minimum sentences to substances without regard to their pharmacological effect. The
impact would be particularly harmful in light of 1) the dramatic recent increase in fentanylanalogue prosecutions and 2) the racial justice dimension of such prosecutions, with wellover half of all fentanyl-analogue prosecutions targeting Black people, and over 75%
targeting Black and Hispanic individuals. This is an unnecessary risk because the DOJ
currently has – and exercises – the power to prosecute illicit fentanyl analogues underfederal law.
This will lead to devastating and consequential outcomes for our communities.
To address these problems, the TEST Act will:• Extend the temporary emergency scheduling of FRS for up to 4 years for new
fentanyl analogues to allow time for testing of FRS;
• Amend the CSA so that FRS can more quickly be evaluated and properly
scheduled according to pharmacological effect, including by narrowing the HHS
evaluation factors from eight to four;• Establish a pathway for the Attorney General to delist FRS that do not havepotential for abuse by removing them from Schedule I, a provision that is based on
the Biden-Harris Administration’s 2021 Recommendations to Congress; 8• Establish a pathway for the Attorney General to place into a lower schedule any
FRS that has a potential for abuse that is less than the drugs or other substances inschedules I and II, a provision that is based on the Biden-Harris Administration’s
2021 Recommendations to Congress;• Require the publication of scientific and medical evaluations and recommendations
for those FRS that have already been tested;• Expand the pool of researchers allowed to study FRS for medical or therapeutic
uses and to make science-based scheduling recommendations by creating a new,alternative registration process for schedule I research, provisions based on theBiden-Harris Administration’s 2021 Recommendations to Congress; and• Authorize appropriations to the Secretary of HHS to conduct testing.
Approximately 285 people die of a preventable overdose each day in the United States.9
Rather than restricting research, the federal government must support the study anddevelopment of new tools and the provision of health services to save lives. This includes
studying FRS for potential treatment options and ensuring people can receive the besttreatments imaginable. Ensuring that federal agencies and the research community canstudy emerging substances for potential therapeutic value, including FRS, is a criticallyimportant component of these efforts. It can also help ensure that people are not unjustly
8Biden-Harris Administration Provides Recommendations to Congress on Reducing Illicit Fentanyl-Related
Substances, The White House (Sept. 2, 2021), https://www.whitehouse.gov/ondcp/briefingroom/2021/09/02/biden-harris-administration-provides-recommendations-to-congress-on-reducing-illicitfentanyl-related-substances/
9Centers for Disease Control and Prevention (CDC), National Center for Health
Statistics, National Vital Statistics System, (2023),
https://www.cdc.gov/nchs/nvss/vsrr/drug-overdose-data.htm.

incarcerated for crimes that were never committed.
We urge you to cosponsor the TEST Act and support its swift passage thisCongress before the temporary classwide scheduling policy of FRS expires on
December 31, 2024. For questions about anything in this letter, please contact Maritza
Perez Medina, Director of Federal Affairs at the Drug Policy Alliance, atmperez@drugpolicy.org, and Mazen Saleh, MSc, Policy Director of Integrated Harm
Reduction at R Street Institute, at msaleh@rstreet.org.
Sincerely,A New PATH (Parents for Addiction Treatment & Healing)
Academy of Perinatal Harm Reduction (OR)Action Lab at Center for Health Policy and Law, Northeastern University (MA)AIDS Alabama (AL)AIDS United
American Civil Liberties Union
AMERSA, Inc
CAN-DO Foundation
Center for Law and Social Policy (CLASP)Clergy for a New Drug Policy
COYOTE RI (RI)
CURE (Citizens United for Rehabilitation of Errants)
Dream.org
Drug Policy Alliance
Due Process InstituteElephant Circle
End It For Good (MS)FAMM
Federal Public and Community Defenders
Forward Justice Maryland (MD)Georgia Harm Reduction Coalition (GA)GLMA: Health Professionals Advancing LGBTQ+ Equality
Human Rights WatchIllinois Harm Reduction & Recovery Coalition (IL)
LatinoJustice PRLDEF
Law Enforcement Action Partnership
The Leadership Conference on Civil and Human Rights
Los Angeles Community Action Network (CA)More Than Our Crimes
Movement for Black Lives
NASTAD
National Association of Criminal Defense Lawyers (DC)National Council of Churches
National Council on Alcoholism and Drug Dependence-Maryland Chapter (MD)National Harm Reduction Coalition
National Health Care for the Homeless Council
National Health Law Program

NETWORK Lobby for Catholic Social Justice
NMAC
OpioidSettlementTracker.com (WA)Prison Policy Initiative
R Street InstituteReproductive Justice InsideStoptheDrugWar.org (DC)
Susan Mason Consulting (MD)Texas Organizing Project (TX)
The National Council for Incarcerated and Formerly Incarcerated Women and Girls
The Porchlight Collective SAP (IL)The Sentencing Project
Vera Institute of Justice
Veterans Cannabis Coalition
Washington Office on Latin America (WOLA)