Attorney General Phil Weiser’s testimony on the Fentanyl Accountability and Prevention legislation (HB-22-1326)
April 12, 2022 (DENVER) – Attorney General Phil Weiser submitted the following testimony to the Colorado House Judiciary Committee on HB22-1326, the Fentanyl Accountability and Prevention legislation:
This letter provides testimony regarding House Bill 22-1326 (“HB 22-1326”), and I ask that it be included in the Committee on the Judiciary’s (“Committee”) record as it considers this bill. I regret that I am unable to deliver these remarks in person as, prior to the Committee’s calendaring of HB 22-1326, I was scheduled to be Washington, D.C. for meetings related to pending federal litigation and implementation of the Colorado Privacy Act.
In 2021, the United States reached a terrifying threshold by losing over 100,000 lives to drug overdoses during a single year. That number exceeds deaths from car crashes and gun violence deaths combined for that year. Stated simply, we are facing an addiction crisis and it is a deadly one. The majority of these overdose deaths are from opioids and, increasingly, those deaths are because of fentanyl. According to the District of Colorado U.S. Attorney’s Office, fentanyl overdose deaths in our State grew to over 800 in 2021. Recognizing this crisis, former U.S. Attorney Jason Dunn and I highlighted last year that fentanyl is 50 to 100 times more potent than morphine and 30 times as strong as heroin; it is an exceptionally deadly drug. And many taking this drug are not even aware that they are ingesting it as fentanyl is being used in counterfeit versions of prescription pills like Xanax, generic oxycodone, and Adderall as well as placed in other widely used illicit substances, including cocaine and methamphetamines. This means that, in some cases, it is not even accurate to use the term “overdose”; rather, we are witnessing increasing numbers of deaths by fentanyl poisoning.
Since the mid-1990s, manufacturers, corporate executives, and other actors acted irresponsibly and illegally by pushing opioid pharmaceuticals and making them widely available. During this dark chapter, these companies concealed and misled the public about the truly addictive nature of these drugs. As a consequence, millions became addicted to opioids, had their lives destroyed, and struggled to live with their addiction.
Our department has taken action to hold accountable those bad actors who pushed out prescription pills and fueled our nation’s opioid epidemic. To date, we have secured $400 million in settlement dollars that will flow to Colorado communities via a historic framework with every county and region in Colorado. This money will be used to begin to address the lack of drug treatment and recovery options available. At present, Colorado has only 16 percent of the drug treatment capacity we need for those seeking treatment services. Without more resources, far too many Coloradans continue to struggle with—and feed—their addiction because of a lack of treatment and recovery options.
The decline in available prescription pills, however, and the large number of those struggling with drug addiction have created an opportunity for drug cartels to fill this vacuum with synthetically produced opioids such as fentanyl. As a result, fentanyl now flows into our communities. It must be stopped. This crisis calls for action on several fronts.
To address this crisis, Colorado should enact comprehensive legislation that addresses the problem through a mix of public health, education and prevention, harm reduction, and law enforcement strategies. HB 22-1326 is a necessary stride forward and complements the work our department is doing to address the opioid crisis. Notably, we are working to raise greater awareness of the risks of opioids (particularly fentanyl), provide more drug treatment and recovery services, and support appropriate harm reduction strategies (such as the distribution of Narcan). But even with the $400 million we are bringing to Colorado from our litigation against Big Pharma, we need more resources to address this crisis.
I’m grateful for Speaker Garnett’s and Representative Lynch’s leadership in crafting HB 22-1326. I urge the Committee’s support for this bill as well as for additional improvements that will enhance the effectiveness of our State’s response to this crisis. And I should underscore that this bill will be part of our ongoing public policy response to this crisis. To address this crisis, which is 25 years in the making, we need an urgent, vigilant, and continued response over the years ahead to act effectively and save lives.
There are several components of this bill I want to highlight as sound policy and important building blocks of a comprehensive response to the addiction crisis and the rise of fentanyl. First, the dedication of resources to education and prevention is essential. We continue to hear of overdoses by persons who unknowingly ingest the substance or children who come into contact with fentanyl after adults leave pills within reach. By informing the public of the extreme dangers of this substance, including how to identify it, this bill promises to save lives. The U.S. Drug Enforcement Administration’s campaign—“one pill can kill”—is no exaggeration. We must spread this message far and wide. Our department looks forward to supporting and collaborating with those seeking to protect the public through education on this risk.
Second, the inclusion of greater penalties for those who deal fentanyl is a critical tool for law enforcement to arrest and prosecute those who sell this poison. Importantly, the bill makes the crime of distributing fentanyl resulting in a person’s death a level one drug felony. Fentanyl is an incredibly deadly opioid, and our criminal laws must reflect the heightened risk of death that dealing this drug poses. The knowing sale of fentanyl in the form, for example, of a counterfeit Xanax pill is, in effect, a poisoning. Those responsible for deaths by poisoning should be held accountable.
Third, the bill provides greater resources for public health and harm reduction strategies. HB 22-1326 would make available millions in funding for harm reduction resources and behavioral health services and expand the use of opioid detection tests. In particular, the investment in naloxone should be maintained at the level requested in the bill as it has a great potential to save lives. These are sound public health strategies and resources that must be deployed to ensure we comprehensively address the fentanyl crisis.
While there are many other components of the bill worthy of support, I wish to direct the Committee’s attention to two areas that I have previously stressed should be included in any bill taken up by the General Assembly to address the fentanyl crisis.
One, we should devote significant resources to law enforcement for interrupting the supply chain of fentanyl. By preventing fentanyl from reaching our State and removing pills before they ever reach the street, we can save thousands of lives. Take, for example, a trafficking ring in which my department partnered with 17th Judicial District Attorney Brian Mason and the U.S. Drug Enforcement Administration. By working together as a multi-jurisdictional taskforce, our team confiscated 77,000 fentanyl-laced counterfeit oxycodone pills as well as hundreds of pounds of methamphetamine, heroin, and cocaine. By removing this magnitude of pills from the supply chain before they reached the public, this work undoubtedly saved lives. HB 22-1326 should be further strengthened by providing greater resources for law enforcement agencies to devote directly to fentanyl trafficking interruption operations. These investigations are difficult, and we need more support for such efforts.
Two, the legislature should update the State’s drug possession laws to account for the deadliness of fentanyl. Last year, former U.S. Attorney Dunn and I urged the General Assembly to do just that, updating the possession penalties that apply to “those who possess enough fentanyl to kill hundreds or thousands of people.” Fentanyl kills people at rates far greater than heroin or cocaine. In fact, just a few grams of the substance have a potency capable of ending thousands of lives.
I understand that the Committee may consider an amendment to adjust the current law’s 4-gram threshold for felony possession—by making the possession of any amount of pure fentanyl a felony and lowering the threshold for a felony when an individual possesses a fentanyl analogue (that is, a substance that contains any fentanyl). This is a necessary change to our criminal code—and a concept that I urge the Committee to adopt. As we continue to learn more about synthetic opioids and greater research is available, I urge the General Assembly to continue to adjust this figure as necessary to ensure that criminal possession penalties match the deadliness of this opioid in a responsible manner that does not criminalize addiction.
Thank you for your consideration of these comments.