Fentanyl test strips are illegal in Utah. A lawmaker wants to change that.

State health employees still distribute them, but it’s a legal gray area. Data shows that fentanyl deaths have spiked in recent years.

(Mark Lennihan | AP) An arrangement of fentanyl test strips in New York in 2018. Despite a state program that distributes fentanyl test strips, Utah law classifies them as drug paraphernalia. One lawmaker wants to change that.

Fentanyl test strips can be purchased online for around a dollar apiece. The state even distributes them through its syringe exchange programs.

Experts say these tests can save lives, giving people peace of mind about what drugs they’re consuming as fentanyl is increasingly used to cut other drugs like heroin or methamphetamine, or sold masquerading as prescription drugs.

Yet Utah law codifies these test strips — and other devices used to test drugs — as illegal drug paraphernalia, which could be making it harder for state health officials to get tests into the hands of people who need them.

Utah is not alone. The majority of states have similar laws, according to the American Medical Association. But Democratic state Senator-elect Jen Plumb hopes to remove Utah from that list this legislative session.

So far, the Utah Department of Health and Human Services has been distributing the strips through an agreement with law enforcement despite some so-called haziness in the law, said Heather Bush, the department’s HIV prevention manager.

She said an unused test strip isn’t considered paraphernalia, but a used one could be. Bush said she’d like to expand the state’s test strip distribution, but needs more funds, and the legal gray area makes that difficult.

“The change in the law would just make it less hazy,” Bush said, “because we don’t want to promote something that could be considered illegal.”

Plumb, who founded Utah Naloxone with her brother, said the law is clear that these tests are illegal in Utah — and she wants to change that to save lives.

Utah Naloxone distributes free opioid reversal medication as well as fentanyl test strips, Plumb said, and while she isn’t worried that she or her staff, or state employees, would be arrested for giving these strips out, she is concerned that police could use the law as a pretense to arrest others, like her clients.

“I don’t think that’s OK,” Plumb said. “I think the law itself needs to be the same for everybody.”

The state statute, last updated in 2011, states that “testing equipment used, or intended for use, to identify or to analyze the strength, effectiveness, or purity of a controlled substance” is drug paraphernalia and that someone who uses — or possesses and intends to use — such testing equipment is guilty of a class B misdemeanor.

Someone who delivers — or possesses with the intent to deliver — drug paraphernalia, or anyone who manufactures it, is guilty of a class A misdemeanor, the statute states.

Plumb’s proposal would declassify testing devices, specifically fentanyl test strips, as paraphernalia, which would “give people the ability to test substances to make sure that if they have something very risky, they know it,” she said.

She also hopes to take syringes off that list — a needed change, she said, but “a hard lift.” Currently, people are afraid to return syringes through exchange programs because they don’t want to be charged with possession of paraphernalia.

Salt Lake County District Attorney Sim Gill, whose office prosecutes class A misdemeanors and felonies, said test strips “don’t neatly fit into the idea of what paraphernalia is.”

Gill said the Legislature has previously demonstrated that “we don’t want people to die as a matter of public policy,” such as by passing good Samaritan laws that don’t punish people who give aid or notify police after witnessing an overdose.

He said prosecutors must balance their desire for people to not use illegal drugs with the fact that fentanyl kills — and has become an increasingly deadly problem — when making charging decisions.

“I would much rather err on the side of saving a life,” he said, “rather than sending a message that is going to result in the loss of life.”

As of Friday afternoon, Plumb’s bill file wasn’t publicly available on the Legislature’s website for the 2023 general session. Gill said Plumb’s planned move to clarify that test strips aren’t paraphernalia made “good public policy sense.”

Test strips as harm reduction

Harm reduction is a core tenet of public health, Bush said. It’s wearing a mask or getting a vaccine to stop the spread of COVID-19, or applying sunscreen or putting a long-sleeved shirt to stave off skin cancer.

It doesn’t condemn or condone behavior that could be harmful, Bush said, but instead gives options to reduce its risk.

“It’s saying, ‘We accept you where you are, and we’re gonna help you be healthy,’” Bush said.

The syringe exchange program is one example of the state’s harm reduction work. In 2020, after receiving funding from the Division of Substance Abuse and Mental Health, the health division began distributing fentanyl test strips through that program.

In 2021, as fentanyl deaths spiked — and as authorities seized tens of thousands more pills than in past years — state health officials called test strips “a low-cost intervention for preventing fentanyl overdoses and encouraging harm reduction behaviors.”

The most recent state data shows that from the start of the program through September 2021, providers distributed 15,438 fentanyl test strips to 5,901 individuals. Only a fraction of those people — 1,460 — returned a survey that tracked test results, drugs tested and other information.

It’s a small dataset, Bush said, but it does provide valuable, real-time information about drugs currently on the market. Previously, officials only learned such information after someone died.

(Christopher Cherrington | The Salt Lake Tribune)

Of the people who took strips and filled out a survey, 83% tested their drugs.

Those people’s test strips found fentanyl nearly 60% of the time. The most common drugs tested were heroin and methamphetamine/speed, according to the data.

(Christopher Cherrington | The Salt Lake Tribune)

About 70% of participants declined to answer a later question about how (or if) the results changed how they used the tested drugs. Of those who did answer, most indicated that they chose to have naloxone near them or decided to use it with someone else around.

The third-highest response, from just over 100 people, said the results didn’t change their behavior.

(Christopher Cherrington | The Salt Lake Tribune)

How to use test strips — and where to find them

Mindy Vincent, executive director of the Utah Harm Reduction Coalition, said fentanyl tests are helpful for opiate users to gauge how much they should use, but it’s perhaps more beneficial for people who think they’re using a stimulant, like methamphetamine or cocaine, and have no tolerance for opioids. Fentanyl is a synthetic opioid.

She said providers are increasingly seeing drugs cut with fentanyl, either as pressed pills or powders.

[Read more: Fentanyl has flooded into southern Utah, Washington Post reports]

To test a drug, one needs to dissolve the substance — about 10mg for stimulants, like meth or MDMA, or about 50mg for other drugs — with a tablespoon of water, said Elly Swedberg, with the harm reduction coalition.

One can use a cup, bottle cap or the bag the test came in, and they will need something to stir the mixture.

Then, they should dunk the end of a test strip into the water for about 10 seconds. Results should appear in about a minute.

“It’s the opposite of a pregnancy test,” Swedberg said. “So, two lines means negative one line means positive.”

Swedberg said pressed pills must be crushed to be accurately tested. She compared a pill containing fentanyl to a blueberry muffin. “There’s blueberries in it, but it’s not all throughout,” she said.

Fentanyl test strips are available wherever providers conduct syringe exchanges, Vincent said.

The harm reduction coalition has appointments available for exchange services at their Midvale office on Mondays, and does mobile distribution Tuesday through Saturday. For more information on mobile deliveries, text 385-323-2217 for a providers’ location.

Information about other providers can be found on the Utah Syringe Exchange Network’s website.

Tests can also be purchased online from endoverdose.net, wisebatch.com, dancesafe.org, Detectachem.com/harmreduction, signifyanalytics.com or amazon.com. Tests designated for urine can be used to test the drug before use, Swedberg said.