ASTHO’s Public Health Legal Mapping Center

Legal Mapping of Harm Reduction Laws and Overdose Prevention Center Legislation

CDC data highlights a staggering number of nearly 110,000 drug overdose deaths in 2022. Potent synthetic opioids such as fentanyl have added to the rising number of overdose deaths and other substances such as xylazine have called for adjusted protocols when responding to an overdose, prompting state and territorial health agencies (S/THAs) to respond and mitigate overdose-related harms through robust prevention and surveillance efforts.

Reducing overdose deaths requires layered intervention strategies to ensure that people who use drugs receive resources that prevent overdose and that support access to treatment. Several evidence-based and promising interventions—including community-wide distribution of naloxone, fentanyl test strip distribution, and the adoption of overdose prevention centers—intended to minimize the negative consequences of drug use (i.e., harm reduction). These strategies are also effective at preventing the spread of infectious disease, connecting people who use drugs to substance use disorder treatment, and preventing overdoses.

ASTHO, with support from CDC’s Overdose Data to Action (OD2A) cooperative agreement, developed an interactive resource visualizing state and territorial laws that support harm reduction activities as of January 1, 2023. This report highlights the public health importance of three harm reduction policies and practices to reduce overdoses:

1. Facilitating community distribution of naloxone.
2. Facilitating community distribution of fentanyl test strips (FTS).
3. Overdose prevention centers.

Facilitating Community Distribution of Naloxone

Naloxone is a life-saving medication, administered by an intranasal spray or intramuscular injection, that reverses an opioid overdose by quickly binding to opioid receptors in the brain, blocking the effects of opioids, and providing no effect if opioids are not present. Harm reduction programs and local health agencies distributing naloxone increase community access, helping to prevent and reduce opioid overdose deaths, especially among people who use drugs or among people who are more likely to encounter an overdose. Research indicates having naloxone readily available to people who are likely to encounter an overdose can reduce overdose deaths by up to 21%.

As of July 28, 2023, FDA has approved two naloxone products for over-the-counter use: Narcan, a 4 mg naloxone hydrochloride nasal spray, and RiVive, a 3 mg nasal spray. With this approval, distribution of over-the-counter naloxone products is possible without navigating the legal framework for prescribing medications (e.g., liability protections for prescribers and dispensers, jurisdiction-wide standing orders). While this measure was a major step in addressing the opioid overdose crisis, jurisdictions should consider retaining established policies that support distribution of other naloxone formulations that were not approved for over-the-counter use. These formulations will still need the legal framework of liability protections to support community distribution.

Nearly every jurisdiction (49 states, Washington, D.C., and Puerto Rico) provides laypersons liability protections for administering naloxone to a person experiencing an overdose. Most U.S. jurisdictions also have at least one law facilitating the community distribution of naloxone, including liability protections for people distributing naloxone. At least seven states have laws that support bulk purchase of naloxone, allowing community organizations and nonprofits to distribute it at lower costs.

Facilitating Distribution of Fentanyl Test Strips

The synthetic opioid fentanyl and other related analogs have contributed greatly to the overdose death rate. Fentanyl has been found in multiple substance types across the country, but people who use drugs may not be aware of its presence. This is particularly dangerous for persons presuming a supply of stimulants is free of opioids, as they could unintentionally consume fentanyl, and in some cases experience an overdose. With a much higher potency than other opioids, understanding when fentanyl may be in a drug supply is critical. Continued engagement and announcements from agencies such as CDC and DEA can swiftly alert S/THAs health departments and first responders of fentanyl analogs within their communities.

Fentanyl test strips (FTS) can accurately detect whether fentanyl is present in a drug supply, with most FTS costing a dollar per strip. To use FTS, people who use drugs can dilute a small sample of their drug supply in water and receive a “yes or no” answer if fentanyl is present (i.e., there is no indicator of how much is present). Promising data links FTS use with a positive change in overdose risk behaviors. For example, a 2017 study showed that using FTS to determine a positive result of fentanyl in a drug supply was associated with a reduction in risk behaviors between baseline and follow-up. Additionally, 95% of all participants wanted to use FTS in the future. FTS allows people who use drugs to make an informed decision about their drug use and is a low-cost option to reduce harm. In 2021, SAMHSA and CDC jointly announced that federal grantees may use funds aimed at reducing drug overdose deaths to purchase FTS.

Although FTS are an evidence-based intervention supported by the federal government, this strategy can be unavailable in many states and territories because drug checking equipment like FTS is prohibited by their jurisdiction’s drug paraphernalia law. Starting in the 1970s, states and territories enacted laws to prevent the sale and use of drug paraphernalia to reduce overall drug use, with at least 38 states adopting the DEA’s Model Drug Paraphernalia Act of 1979. Consistent with the model act, the definition of drug paraphernalia included testing equipment to determine the purity of a substance. Because FTS are designed to detect the presence of fentanyl in other substances, they are considered testing equipment under many state drug paraphernalia laws.

States have worked to amend their laws to allow possession, use, and distribution of FTS to reduce overdose deaths, with 11 states enacting legislation legalizing FTS under their drug paraphernalia laws in 2022. As of January 1, 2023, 26 states and territories legally authorized the use of FTS in their jurisdiction. By July 5, 2023 at least five state laws went into effect legalizing FTS (Kentucky, Ohio, Pennsylvania, South Dakota, and Utah) and one state legislature (Illinois) passed a bill to legalize FTS. Further, at least 10 states (Arkansas, Hawaii, Massachusetts, Mississippi, Montana, Missouri, New Hampshire, Oregon, Texas, and Washington) considered legislation to legalize FTS during the 2023 legislative sessions.

Beyond legalization, at least 18 states have laws supporting the distribution of FTS in the community as of January 1, 2023. Of those, three states (Delaware, Illinois, and Oklahoma) require distribution of FTS without compensation. These continued efforts are critical to ensure people who use drugs can take steps to minimize negative consequences of drug use and help save lives.

Overdose Prevention Centers

Overdose prevention centers (OPCs) are places where people who use drugs can consume pre-obtained substances under medical supervision. They typically offer wraparound services such as counseling, housing support, and infectious disease care. More than 100 OPCs can be found across over 60 jurisdictions worldwide. Currently, there are only two recognized sites in the United States; both are run by OnPoint NYC in New York City.

OPCs are a promising harm reduction practice as they reduce the risk of fatal overdose, reduce unsterile needle use, and connect people who use drugs with further health and well-being services. In more than 30 years of operation, research has shown that no one has ever fatally overdosed on-site at an OPC while under medical supervision. While OPCs show promise in reducing harms related to opioid use, more research is needed to consider larger impacts over time.

States are beginning to consider OPCs for harm reduction. From 2019-2023, at least nine states (California, Illinois, Kentucky, Massachusetts, Missouri, New Jersey, New York, Rhode Island, and Vermont) considered legislation to open OPCs within their jurisdictions. Only three state legislatures passed bills to authorize OPCs (California, Rhode Island, and Vermont), with the Governors of California and Vermont both vetoing the legislation. As of January 1, 2023, only Rhode Island has a law authorizing OPCs.

In July 2021, Rhode Island enacted legislation to start an OPC pilot program regulated by the health department. Under the law, OPC’s must receive local municipal approval; as of June 2023, no sites have opened. The law also authorized the Rhode Island Department of Health to create regulations detailing what services the OPC’s must offer and procedures for licensure.  Under these regulations, all OPC sites must provide access to clean needles and syringes, naloxone, and harm reduction education and supplies. Sites must also offer referrals for medical treatment, behavioral counseling, legal services, employment, housing, and basic needs services.

Conclusion

CDC fatal overdose data reveals a distressing increase in recent drug overdose deaths, primarily driven by potent synthetic opioids such as fentanyl. While S/THAs have taken swift action through comprehensive prevention and surveillance efforts to effectively reduce overdose deaths, a multi-layered approach will greatly enhance efforts to reduce preventable overdoses and deaths.

This approach could include implementing evidence-based harm reduction interventions, such as community distribution of naloxone, dissemination of fentanyl test strips, and establishing OPCs. Harm reduction interventions have proven effective in preventing the spread of infectious diseases, connecting individuals to treatment, and saving lives. By adopting these evidence-based interventions and addressing legal barriers, S/THAs can make significant strides in preventing overdose deaths and improving the health outcomes of people who use drugs.

Download the Report

• Reducing Overdose through Policy Interventions: ASTHO’s Recommendations for State and Territorial Health Officials and Agencies
• Harm Reduction Policies Can Prevent Overdose Fatalities
• Opioid Crisis: Continuing Efforts to Prevent Overdose

Core Project Team

• Maggie Davis, Director, State Health Policy
• JoAnne McClure, Senior Analyst, State Health Policy
• Victoria Pless, Assistant Director, Overdose Prevention
• Christina Severin, Director, Public Health Law

Contributing ASTHO Staff

State Health Policy

• Andy Baker-White, Senior Director
• Lana McKinney, Senior Analyst
• Parker Beene, Senior Analyst
• Beth Giambrone, Senior Analyst
• Leah Gervin, Intern
• Amanda Barker, Intern
• Evan Han, Intern

Overdose Data to Action

• Yaryna Onufrey, Analyst
• Jennifer Farfalla, Director
• Richa Ranade, Senior Director
• Kaela Hurd, Analyst
• Kayley Humm, Senior Analyst
• Ari Love, Intern

Content Development and Communications

• Andrew Tucker, Director
• Christopher Preheim, Graphic Designer

Web Services

• Heidi Satter, Director
• Emily Lapayowker, Manager

ASTHO also thanks our colleagues at the Center for Public Health Law Research for providing technical assistance throughout the project.