II 

118TH CONGRESS 

1ST SESSION S. 389 

To deter the trafficking of illicit fentanyl, provide justice for victims, and 

for other purposes. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 9, 2023 

Mr. THUNE introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

A BILL 

To deter the trafficking of illicit fentanyl, provide justice 

for victims, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Justice Against Spon5 sors of Illicit Fentanyl Act of 2023’’. 

6 SEC. 2. FINDINGS AND PURPOSE. 

7 (a) FINDINGS.—Congress finds the following: 

8 (1) International drug trafficking is a serious 

9 and deadly problem that threatens the vital interests 


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1 of the United States and the safety and health of 

2 every community in the United States. 

3 (2) Transnational criminal organizations, car4 tels, and violent gangs are leading perpetrators of 

5 drug trafficking, often combining the manufacture 

6 and distribution of synthetic opioids with violence, 

7 human smuggling and trafficking, firearms traf8 ficking, and public corruption, and pose a sustained 

9 threat to the homeland security of the United 

10 States. 

11 (3) Illicit fentanyl is primarily produced in clan12 destine laboratories and trafficked into the United 

13 States in powder and pill form, including fentanyl14 laced counterfeit pills. 

15 (4) The People’s Republic of China (hereinafter 

16 in this section referred to as ‘‘China’’) is the pri17 mary source country of fentanyl precursor chemicals 

18 used to manufacture the illicit fentanyl that is traf19 ficked into the United States. 

20 (5) The Commission on Combating Synthetic 

21 Opioid Trafficking, established under section 7221 

22 of the National Defense Authorization Act for Fiscal 

23 Year 2020 (Public Law 116–92), reported in 2022 

24 that China, which supplied 70 to 80 percent of 

25 fentanyl seized by Federal authorities between 2014 


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1 and 2019, has been surpassed by Mexico as the 

2 ‘‘dominant source’’ of illicit fentanyl in the United 

3 States. 

4 (6) Illicit fentanyl is primarily trafficked by 

5 land into the United States through legal ports of 

6 entry, as well as between such ports of entry, with 

7 some trafficking facilitated by domestic and foreign8 based social media and encrypted communication ap9 plications. 

10 (7) In fiscal years 2021 and 2022, U.S. Cus11 toms and Border Protection seized over 24,000 

12 pounds of fentanyl at ports of entry, a 200 percent 

13 increase from the amounts seized in fiscal years 

14 2019 and 2020. 

15 (8) Deaths caused by the trafficking of illicit 

16 fentanyl have reached epidemic proportions, as— 

17 (A) fentanyl was involved in nearly 

18 200,000 deaths in the United States during the 

19 period between 2014 and 2020; 

20 (B) the number of drug overdose deaths in 

21 the United States surpassed 100,000 during 

22 the period between May 2020 and April 2021, 

23 of which over 64,000 deaths were related to 

24 fentanyl; and 


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1 (C) fentanyl and other synthetic opioids 

caused approximately 2 2 ⁄3 of more than 107,000 

3 fatal overdoses in the United States during 

4 2021. 

5 (9) Overdose deaths remain a leading cause of 

6 injury-related death in the United States, and 

7 fentanyl-related deaths are the leading cause of 

8 deaths among adults aged 18 to 45. 

9 (10) Failure to meaningfully combat illicit 

10 fentanyl trafficking will continue to stress the health 

11 care and law enforcement resources of the United 

12 States. 

13 (11) It is necessary to recognize the substantive 

14 causes of action for aiding and abetting and con15 spiracy liability under the Controlled Substances Act 

16 (21 U.S.C. 801 et seq.). 

17 (12) The decision of the United States Court of 

18 Appeals for the District of Columbia in Halberstam 

19 v. Welch, 705 F.2d 472 (D.C. Cir. 1983), which has 

20 been widely recognized as the leading case regarding 

21 Federal civil aiding and abetting and conspiracy li22 ability, including by the Supreme Court of the 

23 United States, provides the proper legal framework 

24 for how such liability should function in the context 


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1 of the Controlled Substances Act (21 U.S.C. 801 et 

2 seq.). 

3 (13) Persons, entities, or countries that know4 ingly or recklessly contribute material support or re5 sources, directly or indirectly, to persons or organi6 zations that pose a significant risk of committing 

7 acts of trafficking of illicit fentanyl that threaten the 

8 safety and health of nationals of the United States 

9 or the national security, foreign policy, or economy 

10 of the United States, necessarily direct such conduct 

11 at the United States, and should reasonably antici12 pate being brought to court in the United States to 

13 answer for that conduct. 

14 (14) The United States has a compelling inter15 est in providing persons and entities injured as a re16 sult of the trafficking of illicit fentanyl into the 

17 United States with full access to the court system in 

18 order to pursue civil claims against persons, entities, 

19 or countries that have knowingly or recklessly pro20 vided material support or resources, directly or indi21 rectly, to the persons or organizations responsible 

22 for their injuries. 

23 (b) PURPOSE.—The purpose of this Act is to provide 

24 civil litigants with the broadest possible basis, consistent 

25 with the Constitution of the United States, to seek relief 


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1 against persons, entities, and foreign countries, wherever 

2 acting and wherever they may be found, that have pro3 vided material support, directly or indirectly, to foreign 

4 organizations or persons that engage in the trafficking of 

5 illicit fentanyl into the United States. 

6 SEC. 3. RESPONSIBILITY OF FOREIGN STATES FOR THE 

7 TRAFFICKING OF FENTANYL INTO THE 

8 UNITED STATES. 

9 (a) IN GENERAL.—Chapter 97 of title 28, United 

10 States Code, is amended by inserting after section 1605B 

11 the following: 

12 ‘‘§ 1605C. Responsibility of foreign states for the traf13 ficking of fentanyl into the united states 

14 ‘‘(a) DEFINITION.—In this section, the term ‘fentanyl 

15 trafficking’ means— 

16 ‘‘(1) means any illicit activity— 

17 ‘‘(A) to produce, manufacture, distribute, 

18 sell, or knowingly finance or transport— 

19 ‘‘(i) illicit fentanyl, including any con20 trolled substance that is a synthetic opioid 

21 and any listed chemical (as defined in sec22 tion 102 of the Controlled Substances Act 

23 (21 U.S.C. 802)) that is a synthetic opioid 

24 utilized for fentanyl production; or 


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1 ‘‘(ii) active pharmaceutical ingredients 

2 or chemicals that are used in the produc3 tion of fentanyl; 

4 ‘‘(B) to attempt to carry out an activity 

5 described in subparagraph (A); or 

6 ‘‘(C) to assist, abet, conspire, or collude 

7 with any other person to carry out an activity 

8 described in subparagraph (A); 

9 ‘‘(2) a violation of section 401(a)(1) of the Con10 trolled Substances Act (21 U.S.C. 841(a)(1)) involv11 ing manufacturing, distributing, or dispensing, or 

12 possessing with intent to manufacture, distribute, or 

13 dispense, fentanyl or a fentanyl-related substance in 

14 or into the United States; 

15 ‘‘(3) an attempt or conspiracy to commit a vio16 lation described in paragraph (2); 

17 ‘‘(4) having manufactured, distributed, or dis18 pensed, or possessed with intent to manufacture, 

19 distribute, or dispense, fentanyl or a fentanyl-related 

20 substance outside the United States with the inten21 tion of such fentanyl or fentanyl-related substance 

22 being distributed or dispensed in or into the United 

23 States in violation of section 401(a)(1) or 406 of the 

24 Controlled Substances Act (21 U.S.C. 841(a)(1), 

25 846); or 


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1 ‘‘(5) having produced or manufactured, distrib2 uted, or dispensed, or possessed with intent to man3 ufacture, distribute, or dispense, a substance that is 

4 a precursor to fentanyl or a fentanyl-related sub5 stance with the intention of such precursor, fentanyl, 

6 or fentanyl-related substance being distributed or 

7 dispensed in or into the United States in violation 

8 of section 401(a)(1) or 406 of the Controlled Sub9 stances Act (21 U.S.C. 841(a)(1), 846). 

10 ‘‘(b) RESPONSIBILITY OF FOREIGN STATES.—A for11 eign state shall not be immune from the jurisdiction of 

12 the courts of the United States in any case in which money 

13 damages are sought against a foreign state for physical 

14 injury to person or property or death occurring in the 

15 United States and caused by— 

16 ‘‘(1) an act of fentanyl trafficking in or into the 

17 United States; and 

18 ‘‘(2) a tortious act or acts of the foreign state, 

19 or of any official, employee, or agent of that foreign 

20 state while acting within the scope of his or her of21 fice, employment, or agency, regardless where the 

22 tortious act or acts of the foreign state occurred. 

23 ‘‘(c) CLAIMS BY NATIONALS OF THE UNITED

24 STATES.— 


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1 ‘‘(1) DEFINITION.—In this subsection, the term 

2 ‘person’ has the meaning given the term in section 

3 1 of title 1. 

4 ‘‘(2) CLAIMS.—If a foreign state would not be 

5 immune under subsection (b) with respect to an act 

6 of fentanyl trafficking in or into the United States, 

7 a national of the United States may bring a claim 

8 against the foreign state in the same manner, and 

9 may obtain the same remedies, as a claim with re10 spect to an act of international terrorism brought 

11 under section 2333. 

12 ‘‘(3) AIDING AND ABETTING LIABILITY.—In an 

13 action under paragraph (2) for an injury arising 

14 from an act of fentanyl trafficking in or into the 

15 United States, liability may be asserted as to any 

16 person who aids and abets, by knowingly providing 

17 substantial assistance, or who conspires with the 

18 person who committed such an act of fentanyl traf19 ficking. 

20 ‘‘(4) EFFECT ON OTHER FOREIGN SOVEREIGN

21 IMMUNITIES.—Nothing in paragraph (3) affects im22 munity of a foreign state from jurisdiction under 

23 other law. 

24 ‘‘(d) RULE OF CONSTRUCTION.—A foreign state shall 

25 not be subject to the jurisdiction of the courts of the 


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1 United States under subsection (b) on the basis of an 

2 omission or a tortious act or acts that constitute mere neg3 ligence.’’. 

4 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

5 (1) The table of sections for chapter 97 of title 

6 28, United States Code, is amended by inserting 

7 after the item relating to section 1605B the fol8 lowing: 

‘‘1605C. Responsibility of foreign states for the trafficking of fentanyl into the 

United States.’’. 

9 (2) Subsection 1605(g)(1)(A) of title 28, 

10 United States Code, is amended by striking ‘‘or sec11 tion 1605B’’ and inserting ‘‘, 1605B, or 1605C’’. 

12 SEC. 4. STAY OF ACTIONS PENDING STATE NEGOTIATIONS. 

13 (a) EXCLUSIVE JURISDICTION.—The courts of the 

14 United States shall have exclusive jurisdiction in any ac15 tion in which a foreign state is subject to the jurisdiction 

16 of a court of the United States under section 1605C of 

17 title 28, United States Code, as added by section 3(a) of 

18 this Act. 

19 (b) INTERVENTION.—The Attorney General, in con20 sultation with the Administrator of the Drug Enforcement 

21 Administration, may intervene in any action in which a 

22 foreign state is subject to the jurisdiction of a court of 

23 the United States under section 1605C of title 28, United 

24 States Code, as added by section 3(a) of this Act, for the 


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1 purpose of seeking a stay of the civil action, in whole or 

2 in part. 

3 (c) STAY.— 

4 (1) IN GENERAL.—A court of the United States 

5 may stay a proceeding against a foreign state in an 

6 action brought under section 1605C of title 28, 

7 United States Code, as added by section 3(a) of this 

8 Act, if the Secretary of State certifies that the 

9 United States is engaged in good faith discussions 

10 with the foreign state defendant concerning the reso11 lution of the claims against the foreign state, or any 

12 other parties as to whom a stay of claims is sought. 

13 (2) DURATION.— 

14 (A) IN GENERAL.—A stay under this sec15 tion may be granted for not more than 180 

16 days. 

17 (B) EXTENSION.— 

18 (i) IN GENERAL.—The Attorney Gen19 eral may petition the court for an exten20 sion of the stay for additional 180-day pe21 riods. 

22 (ii) RECERTIFICATION.—A court shall 

23 grant an extension under clause (i) if the 

24 Secretary of State recertifies that the 

25 United States remains engaged in good 


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1 faith discussions with the foreign state de2 fendant concerning the resolution of the 

3 claims against the foreign state, or any 

4 other parties as to whom a stay of claims 

5 is sought. 

6 SEC. 5. SEVERABILITY. 

7 If any provision of this Act or any amendment made 

8 by this Act, or the application of a provision or amend9 ment to any person or circumstance, is held to be invalid, 

10 the remainder of this Act and the amendments made by 

11 this Act, and the application of the provisions and amend12 ments to any other person not similarly situated or to 

13 other circumstances, shall not be affected by the holding. 

14 SEC. 6. EFFECTIVE DATE. 

15 The amendments made by this Act shall apply to any 

16 civil action— 

17 (1) pending on, or commenced on or after, the 

18 date of enactment of this Act; and 

19 (2) arising out of an injury to a person, prop20 erty, or business on or after January 1, 2013. 

Æ 


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