W. Va. Legislature Inadvertently Bans Test Strips for “Emerging Threat” Xylazine
According to a DHHR email obtained by Dragline, a bill that put the animal tranquilizer on the controlled substance schedule (SB 546) also made the distribution of test strips for it illegal.
May 9, 2022 • Written by Kyle Vass
An animal tranquilizer called xylazine (or “tranq”) is ravaging the illicit drug supply. Often mixed with fentanyl, the drug leaves people who use it with necrotizing flesh wounds. And since it’s a sedative, xylazine overdose can’t be reversed with Naloxone (though experts still recommend giving to someone to offset the opioids often mixed in with the drug).
The devastating effects of the drug have caused the White House to declare xylazine an emerging threat. The drug, first identified in large cities, has now made its way into the drug supply of more rural communities including cities in West Virginia. In the recent months, several states including West Virginia have put it on controlled substance lists.
But due to the state’s strict drug paraphernalia law, placing xylazine on the controlled substance list has caused an unintended consequence: test strips for the drug are now considered illegal drug paraphernalia.
According to an email obtained by Dragline from the West Virginia Department of Health and Human Resources, SB 546 would make distributing xylazine test strips an illegal activity once the bill takes effect next month. (Changes made to the criminal code in West Virginia take effect 90 days after passage.)
“On June 8, 2023, SB 546, which amends W. Va. Code 60A-2-210 to add xylazine as a schedule IV narcotic, becomes effective. Once this happens, xylazine test strips will be considered drug paraphernalia under W. Va. Code 47-19-3(a)(4).
Specifically, this code section defines ‘drug paraphernalia’ as ‘[t]esting equipment marketed for use, or designed for use in identifying, or in analyzing the strength, effectiveness or purity of controlled substances.’ This section specifically excludes fentanyl test strips, but no other form of test strip. Therefore, once SB 546 becomes effective items deemed "drug paraphernalia" cannot be sold without first obtaining a license from the State Tax Commissioner.
It is my understanding that possession of testing strips will not be a criminal offense, but distributing the test strips without following the proper channels could be deemed an ‘illegal drug paraphernalia businesses” under W. Va. Code 60A-4-403a.”
Lawmakers interviewed for this story were surprised to learn their drug-scheduling bill created a situation where the distribution of xylazine test strips will be considered illegal.
Several have committed to new legislation that will clarify the strips are not drug paraphernalia.
But that change can’t take place until 2024 Legislative Session begins in eight months. Between now and then, experts fear the state is getting caught off guard in detecting the emerging threat much like it was when fentanyl started showing up in the illicit drug supply.
Legislative intent aside, the newly passed SB 546 creates a chilling effect on local health departments and treatment providers, most of whom rely on DHHR grants to fund their work. The law also puts people distributing test strips at risk of breaking the state’s drug paraphernalia law.
Under West Virginia law, any equipment used to identify or analyze the strength, effectiveness or purity of a controlled substance is considered drug paraphernalia. And since xylazine test strips identify the presence of the drug, they would fall under the classification of drug paraphernalia, according to the DHHR email.
A DHHR spokesperson confirmed that the agency has advised grantees that xylazine test strips are not a permitted grant expenditure on its State Opioid Response grant program. DHHR is not currently seeking to purchase the strips, the spokesperson said.
The legal dilemma surrounding the legal status of these test strips harkens back to when fentanyl test strips ran afoul of the state’s paraphernalia law. Lawmakers addressed that issue in 2022 when Delegate Matthew Rohrbach (R – Cabell) introduced legislation to clarify that fentanyl test strips aren’t paraphernalia. But due to the narrow wording of that exception (“This does not include fentanyl test strips.”), test strips for any other controlled substance still fall under the ban.
When approached for comment about the impact of SB 546 on xylazine test strips, the bill’s sponsor (and candidate for Attorney General) Sen. Mike Stuart (R – Kanawha) was surprised. Stuart said it was never his intention to ban xylazine test strips.
“It certainly was the intent of anybody involved,” Stuart said. “The intent is we get xylazine off the streets to the degree that it’s out there. And we don't want health departments to hesitate in terms of doing what they have to do to be the frontlines of testing.”
When presented with the legal dilemma they had created, several lawmakers committed to passing new legislation. Senate Judiciary Committee Chair Charles Trump (R – Morgan), said he agrees with Senator Stuart that “there was no intention to criminalize test strips for xylazine.”
Trump added, “If that is indeed the consequence of what the Legislature enacted, then I will certainly commit to try to fix or reverse that.” Other lawmakers that committed to working on passing new legislation include SB 546’s lead sponsor Mike Stuart, Delegate Joey Garcia (D – Marion), and Delegate Matthew Rohrbach.
Despite SB 546 not taking effect until June 8, 2023, the new law combined with the existing paraphernalia law has already begun to stifle health departments and service providers.
The Cabell Huntington Health Department’s Chief Health Officer Dr. Michael Kilkenny spoke with the Gazette-Mail last month about his department’s plans to source xylazine test strips. When reached for comment for this story, Dr. Kilkenny said that his health department has not been able to secure funding for the test strips.
Dr. Kilkenny said time is of the essence when getting test strips to people who use drugs.
“When it was fentanyl that everyone was preparing for, we weren’t able to get fentanyl test strips in time. By the time we got them, everything had fentanyl in it. So, they weren’t particularly useful in informing people about their drugs once it was already in everything,” he said.
According to Dr. Kimberly Sue of Yale Medicine, identifying xylazine at this stage is crucial in stopping overdoses. “There are people who will utilize the strips and change the way they use drugs,” she said.
Dr. Sue cited a 2022 study showing people who use drugs expressed an interest in using xylazine test strips and that their interest provided an opportunity “to mitigate the harms of unwanted adulterant exposure.”
“It’s very important that we interact with our patients in a way that to helps them stay alive and healthy. That’s how we stop the overdose crisis,” Dr. Sue said.