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Fentanyl test strips now legal in Arkansas

One piece of legislation that passed during the 2023 session was Act 584: the Fentanyl Enforcement and Accountability Act, sponsored by Representative Jimmy Gazaway of Paragould.. An element of this law that has seemingly flown under the radar is the legalization of fentanyl strips in Arkansas. Senator Justin Boyd of Fort Smith attempted to pass legislation solely to legalize Fentanyl test strips earlier in the session, but the more comprehensive legislation by Representative Gazaway took precedent. Representative Nicole Clowney of Fayetteville said this is a really big deal.

Nicole Clowney: The legislative session just happened so quickly, that things kind of get lost and so I'm just really happy that you know, we can tell the story however we can. So thank you.

Matthew Moore: Can you talk a little bit about what fentanyl strips are kind of first of all, the original classification and how it's changed?

NC: So fentanyl strips are small strips of paper, they retail for about $1 a piece, and they can very quickly detect the presence of fentanyl in other drugs. You know, we know that fentanyl is very dangerous. We know that it's deadly but a lot of people don't know how sneaky it is. Often, drugs are laced with fentanyl. So people end up overdosing on this drug that they don't even know they've ever ingested. And so these strips can help prevent that by allowing users of other drugs to test for the presence of secret fentanyl, before ingesting anything.

MM: And so, in the past in Arkansas, it was illegal to have these on your person because they were considered drug paraphernalia, right?

NC: That's right. They were considered drug paraphernalia in Arkansas until there was a bill that was dedicated to some various fentanyl related policies brought by Representative Jimmy Gazaway out of Paragould in this last legislative session. And that bill said that fentanyl test strips shall not be classified as drug paraphernalia under Arkansas law.

MM: Do you know what the reasoning was behind it previously being labeled as such?

NC: You know, I'm not sure. I have heard some rumblings, you know, we've heard some pushback on handing out contraceptives, such as birth control or condoms in high schools, because we don't want to encourage students to engage in risky behaviors, right? The thought being that providing those protections might encourage people to have sex with teenagers when they wouldn't otherwise. I think a similar philosophy was kind of standing in the way of fentanyl test strips for a while.

In other words, you're putting fentanyl most commonly in other illegal drugs. And so I think the thought is, well, we don't want to make it easier or we don't want to provide a sense of safety in doing other illicit drugs. And so, you know, we need to make sure that these test strips aren't out there, but the data has become overwhelmingly clear that these test strips do save lives.

I don't think anybody would think that a 16 year old buying marijuana from a friend should accidentally be exposed to a deadly drug like fentanyl, and so the thinking has really changed. But Arkansas is still on the front lines of this and I really applaud Representative Gazaway for making this change as soon as we did.

MM: What have you heard from your constituents about just exposure to fentanyl and maybe this is a relief to some of those who are in similar situations to what you described: a teenager who is just looking to get some marijuana and could end up in a really terrible situation?

NC: I hear from my constituents all the time. I don't know that there is a person in Arkansas who has not been impacted by this drug in some way or who doesn't have a story of a family member or a friend who was lost to this drug. As a mother myself, I know that most of my friends with their own kids, we live in terror. It is so different than when we grew up, which I like to think was not that long ago. It is so different for teenagers these days. I just think that most people want common sense solutions that are going to make all of us safer and healthier, and this is certainly one of those things.

I will say that there has been a little bit of confusion on the retail side. I heard from a constituent who tried to buy these and was told that they were not legal in Arkansas. I know that the Attorney General's office has been working really, really hard to change that and to get the message out and so that retailers know that these are legal, because of course, if they're not easily accessible to Arkansans, then the point is defeated. Hopefully that message is getting out and I've gotten some confirmation over the last few weeks that it is.

MM: What would you say to folks who are maybe concerned that the legalization of these fentanyl test strips may lead to more risky behaviors?

NC: I would just say that I can't think of a riskier behavior than unintentionally ingesting fentanyl and we know that fentanyl deaths are increasing exponentially year over year in Arkansas, and if there is anything that we can do to limit them, we should be doing it. This isn't going to increase risky behaviors. All this legalization will do — and the data clearly shows — will make risky behaviors that are going to be undertaken anyway, will be undertaken with a little bit more care. And that's our job as policymakers to allow the space for that to happen. And I'm just so grateful that we did.

MM: is it encouraging to you that there has been bipartisan support for this sort of action?

NC: It is. We see a lot coming out of Little Rock that is that is strictly punitive, rather than preventative or rather than sort of trying to get at the underlying causes. I think this last legislative session, we really saw a reckoning with the root causes of a lot of what plagues us. Whether it be substance use disorders or mental health issues, I think there is a growing sense that addressing our problems is going to take more than just increased punishments for people that we have decided have, "done wrong." I think this is a really important step in keeping Arkansans safe, but I also think that it will go a long way in terms of crime prevention, and I know that that's something that we all care about. So yeah, I'm encouraged.

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Matthew Moore is senior producer for Ozarks at Large.
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