This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0165.CRJ
DATE: 2/17/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 165 Controlled Substance Testing
SPONSOR(S): Hunschofsky
TIED BILLS: IDEN./SIM. BILLS: SB 164
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice Subcommittee Leshko Hall
2) Judiciary Committee
SUMMARY ANALYSIS
Fentanyl is a synthetic opioid analgesic, appearing as crystals or crystalline powder, that is approximately 50 to 100
times more potent than morphine and is currently a Schedule II controlled substance under Florida law. Although
prescription fentanyl can be misused, most overdoses and related deaths have been linked to illicitly manufactured
fentanyl, including fentanyl analogs. Illicit manufacturers frequently mix fentanyl with other illicit drugs, such as heroin,
methamphetamine, and cocaine to increase the potency of the illicit drug and lower the cost of production and also, in
increasing frequency, have been pressing illicitly-manufactured fentanyl into pills made to look like legitimate
prescription opioids.
According to the Florida Medical Examiners Commission, opioid-related deaths have increased 32 percent between
2016 and 2021 in Florida. In 2021, fentanyl ranked second of the drugs most frequently found in decedents and first of
the drugs that caused the most deaths. Specifically, occurrences of fentanyl increased by 10.5 percent and deaths
caused by fentanyl increased by 9 percent between 2020 and 2021. Additionally, occurrences of fentanyl analogs
increased by 41.5 percent and deaths caused by fentanyl analogs increased by 36 percent during the same time
period.
Section 893.145, F.S., defines the term “drug paraphernalia” as all equipment, products, and materials of any kind
which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting,
manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging,
storing, containing, concealing, transporting, injecting, ingesting, inhaling, or otherwise introducing into the human body
a controlled substance in violation of ch. 893 or s. 877.111, F.S. The term includes testing equipment used, intended for
use, or designed for use in identifying, or in analyzing the strength, effectiveness, or purity of, controlled substances.
Fentanyl test strips (FTS) are low-cost, small strips of paper that can be used to detect fentanyl and fentanyl analogs in
all different kinds of controlled substances (heroin, methamphetamine, cocaine, etc.) and forms of controlled substance
(pills, powders, and injectables).
Under s. 893.147, F.S., it is a first-degree misdemeanor to use, or possess with intent to use, drug paraphernalia and is
punishable by up to one-year imprisonment and a $1,000 fine. It is a third-degree felony to deliver, possess with intent
to deliver, or manufacture with intent to deliver drug paraphernalia and is punishable by up to five-years imprisonment
and a $5,000 fine.
HB 165 amends s. 893.145(4), F.S., to remove narcotic-drug-testing products used to test a controlled substance for
fentanyl as described in s. 893.03(2)(b)9., F.S., or a controlled substance analog of fentanyl as described in s.
893.0356(2), F.S., from the definition of drug paraphernalia. As such, under the bill, a person using, possessing,
delivering, or manufacturing FTS is not subject to criminal penalties.
The bill may have a negative indeterminate jail and prison bed impact by reducing the number of convictions under s.
893.147, F.S., resulting in fewer jail and prison admissions.
The bill provides an effective date of July 1, 2023. STORAGE NAME: h0165.CRJ PAGE: 2
DATE: 2/17/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Controlled Substances
Controlled Substance Schedules
Chapter 893, F.S., the Florida Comprehensive Drug Abuse Prevention and Control Act, classifies controlled
substances
1
into five categories, called schedules. These schedules regulate the manufacture, distribution,
preparation, and dispensing of the substances listed therein. The distinguishing factors between the different
controlled substance schedules are the “potential for abuse”
2
of the substance and whether there is a currently
accepted medical use for the substance.
3
The controlled substance schedules are as follows:
Schedule I substances have a high potential for abuse and currently have no accepted medical use in
the United States and their use under medical supervision does not meet accepted safety standards.
4
Schedule II substances have a high potential for abuse and have a currently accepted but severely
restricted medical use in the United States, and abuse of the substance may lead to severe
psychological or physical dependence.
5
Schedule III substances have a potential for abuse less than the substances contained in Schedules I
and II and have a currently accepted medical use in the United States, and the abuse of the substance
may lead to moderate or low physical dependence or high psychological dependence, or in the case of
anabolic steroids, may lead to physical damage.
6
Schedule IV substances have a low potential for abuse relative to substances in Schedule III and have a
currently accepted medical use in the United States, and abuse of the substance may lead to limited
physical or psychological dependence relative to the substances in Schedule III.
7
Schedule V substances, compounds, mixtures, or preparation of substances have a low potential for
abuse relative to the substances in Schedule IV and have a currently accepted medical use in the United
States, and abuse of such compound, mixture, or preparation may lead to limited physical or
psychological dependence relative to the substances in Schedule IV.
8
Controlled Substance Analogs
Section 893.0356, F.S., defines a “controlled substance analog” as a substance which, due to its chemical
structure and potential for abuse is substantially similar to that of a controlled substance listed in Schedule I or
Schedule II of s. 893.03, F.S., and has, is represented to have, or is intended to have a stimulant, depressant, or
hallucinogenic effect on the central nervous system substantially similar to or greater than that of a controlled
substance in Schedule I or Schedule II of s. 893.03, F.S.
9
Application of the controlled substance analog
definition to new substances prevents them from evading controlling statutory provisions before they are able to
be identified and evaluated.
10
1
“Controlled substance” means any substance named or described in Schedules I-V of s. 893.03, F.S. S. 893.02(4), F.S.
2
“Potential for abuse” means that a substance has properties as a central nervous system stimulant or depressant or a hallucinogen that create a
substantial likelihood of its being: 1) used in amounts that create a hazard to the user’s health or safety of the community; 2) diverted from legal
channels and distributed through illegal channels; or 3) taken on the user’s own initiative rather than on the basis of professional medical advice.
S. 893.02(22), F.S.
3
See s. 893.03, F.S.
4
S. 893.03(1), F.S.
5
S. 893.03(2), F.S.
6
S. 893.03(3), F.S.
7
S. 893.03(4), F.S.
8
S. 893.03(5), F.S.
9
S. 893.0356(2)(a), F.S.
10
S. 893.0356(1), F.S. STORAGE NAME: h0165.CRJ PAGE: 3
DATE: 2/17/2023
The following are exempted from the definition of controlled substance analog:
A controlled substance;
Any substance for which there is an approved new drug application;
Any compound, mixture, or preparation which contains any controlled substance which is not for
administration to a human being or animal, and which is packaged in such form or concentration, or with
adulterants or denaturants, so that as packaged it does not present any significant potential for abuse; or
Any substance to which an investigational exemption applies under s. 505 of the Food, Drug, and Cosmetic
Act, 21 U.S.C. 355, but only to the extent that conduct with respect to the substance is pursuant to such
exemption.
11
Fentanyl
Fentanyl is a synthetic opioid analgesic, appearing as crystals or crystalline powder, that is approximately 50 to
100 times more potent than morphine and is currently a Schedule II controlled substance.
12
When prescribed by
a physician, fentanyl is typically used to treat patients with severe pain or to manage pain after surgery and is
administered via injection, transdermal patch, or in lozenges.
13
Although prescription fentanyl can be misused,
most overdoses and related deaths have been linked to illicitly manufactured fentanyl, including fentanyl
analogs.
14
Illicit manufacturers frequently mix fentanyl with other illicit drugs, such as heroin, methamphetamine, and
cocaine to increase the potency of the illicit drug and lower the cost of production and also, in increasing
frequency, have been pressing illicitly-manufactured fentanyl into pills made to look like legitimate prescription
opioids.
15
When combined with other controlled substances that are in a power form, fentanyl is unable to mix
evenly without leaving behind undetectable clumps. In order to fully mix fentanyl with another powder, the
mixture must be combined with a liquid and shaken before allowing the liquid to evaporate, returning the mixture
to a powdered form. If fentanyl is not fully mixed with another controlled substance there may be hot spots
16
of
pure fentanyl in the final product.
17
A lethal dose of fentanyl for a person can range depending on the person’s body size, past usage, and
tolerance, however, in general, 2 milligrams (mg) is considered a potentially lethal dose.
18
The Drug
Enforcement Administration has reported encountering counterfeit opioid pills with from .02 to 5.1 mg of fentanyl
per tablet, with 42 percent of pills tested for fentanyl containing at least 2 mg.
19
Nationwide, overdose deaths
from fentanyl have nearly doubled annually, with 52.7 percent of all overdose deaths involving fentanyl, and
many of those who died not knowing they ingested fentanyl.
20
In Florida, opioid-related deaths have increased 32 percent between 2016 and 2021.
21
In 2021, fentanyl ranked
second of the drugs most frequently found in decedents and first of the drugs that caused the most deaths.
Specifically, occurrences of fentanyl increased by 10.5 percent and deaths caused by fentanyl increased by 9
percent between 2020 and 2021. Additionally, occurrences of fentanyl analogs increased by 41.5 percent and
deaths caused by fentanyl analogs increased by 36 percent during the same time period.
22
11
S. 893.0356(2)(b), F.S.
12
S. 893.03(2)(b), F.S. (However, various fentanyl analogs are found in Schedule I); National Institute on Drug Abuse, Fentanyl,
https://www.drugabuse.gov/publications/drugfacts/fentanyl (last visited Feb. 17, 2023); Centers for Disease Control and Prevention (CDC),
Fentanyl: Incapacitating Agent, https://www.cdc.gov/niosh/ershdb/emergencyresponsecard_29750022.html (last visited Feb. 17, 2023).
13
National Institute on Drug Abuse, Fentanyl, supra note 12.
14
CDC, Increases in Fentanyl-Related Overdose Deaths-Florida and Ohio, 2013-2015, https://www.cdc.gov/mmwr/volumes/65/wr/mm6533a3.htm
(last visited Feb. 17, 2023).
15
Drug Enforcement Administration (DEA), Facts about Fentanyl, https://www.dea.gov/resources/facts-about-fentanyl (last visited Feb. 17, 2023).
16
A hot spot is a high concentration of fentanyl within a mix of other products. National Center for Drug Abuse Statistics, Fentanyl Abuse
Statistics, https://drugabusestatistics.org/fentanyl-abuse-statistics/ (last visited Feb. 17, 2023).
17
Id.
18
Comparatively, a lethal dose of heroin is 100 mg and of cocaine is 250 mg. Id.
19
Supra note 12.
20
Supra note 13.
21
Medical Examiners Commission (MEC), Florida Department of Law Enforcement (FDLE), Drugs Identified in Deceased Persons by Florida
Medical Examiners 2016 Annual Report (November 2017), https://www.fdle.state.fl.us/MEC/Publications-and-Forms/Documents/Drugs-in-
Deceased-Persons/2016-Annual-Drug-Report.aspx (last visited Feb. 17, 2023); FDLE, MEC, Drugs Identified in Deceased Persons by Florida
Medical Examiners 2021 Annual Report (December 2022), https://www.fdle.state.fl.us/MEC/Publications-and-Forms/Documents/Drugs-in-
Deceased-Persons/2021-Annual-Drug-Report-FINAL.aspx (last visited Feb. 17, 2023).
22
MEC, FDLE, Drugs Identified in Deceased Persons by Florida Medical Examiners 2021 Annual Report (December 2022), supra note 21. STORAGE NAME: h0165.CRJ PAGE: 4
DATE: 2/17/2023
Drug Paraphernalia
Section 893.145, F.S., defines “drug paraphernalia” as all equipment, products, and materials of any kind which
are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting,
manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging,
repackaging, storing, containing, concealing, transporting, injecting, ingesting, inhaling, or otherwise introducing
into the human body a controlled substance in violation of ch. 893 or s. 877.111, F.S.
23
Drug paraphernalia is
deemed to be contraband and subject to civil forfeiture.
24
The term includes testing equipment used, intended
for use, or designed for use in identifying, or in analyzing the strength, effectiveness, or purity of, controlled
substances.
25
Under s. 893.147(1), F.S., it is a first-degree misdemeanor to use, or possess with intent to use, drug
paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process,
prepare, test, analyze, pack, repack, store, contain, or conceal a controlled substance or to inject, ingest, inhale,
or otherwise introduce into the human body a controlled substance.
26
A first degree misdemeanor is punishable
by up to one-year imprisonment and a $1,000 fine.
27
Under s. 893.147(2), F.S., it is a third-degree felony to deliver, possess with intent to deliver, or manufacture
with intent to deliver drug paraphernalia, knowing, or under circumstances where one should reasonably know
that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce,
process, prepare, test, analyze, pack, repack, store, contain, or conceal a controlled substance or to inject,
ingest, inhale, or otherwise introduce into the human body a controlled substance.
28
A third degree felony is
punishable by up to five-years imprisonment and a $5,000 fine.
29
Fentanyl Test Strips
Fentanyl test strips (FTS) are low-cost, small strips of paper that can be used to detect fentanyl and fentanyl
analogs in all different kinds of controlled substances (heroin, methamphetamine, cocaine, etc.) and forms of
controlled substances (pills, powders, and injectables).
30
FTS require the user to mix a small amount of
controlled substance with water and place the strip in the mixture for about 15 seconds. The user then takes the
strip out of the mixture and lets it stand out of the water mixture for two to five minutes. The user can then read
the results which are shown as either a single pink line on the left-hand side (positive), two pink lines (negative),
or a single pink line on the right-hand side or no lines (invalid).
31
One caveat is that because FTS only require
the user to mix a small amount of controlled substance, the FTS may not detect any hot spots contained in the
mixture.
Forty-two states, including Florida, and the District of Columbia capture FTS in their definitions of drug
paraphernalia. However, since 2021, at least three states, including Arizona, Tennessee, and Ohio, have
removed FTS from the list of prohibited drug paraphernalia. Of the remaining five states, four do not capture
FTS in their drug paraphernalia definitions,
32
and Alaska has no laws restricting drug paraphernalia.
33
23
Relating to the inhalation, ingestion, possession, sale, purchase, or transfer of harmful chemical substances. S. 877.111, F.S.
24
S. 893.145, F.S.
25
S. 893.145(4), F.S.
26
S. 893.147(1), F.S.
27
Ss. 775.082 and 775.083, F.S.
28
S. 893.147(2), F.S.
29
Ss. 775.082 and 775.083, F.S.
30
CDC, Fentanyl Test Strips: A Harm Reduction Strategy, https://www.cdc.gov/stopoverdose/fentanyl/fentanyl-test-strips.html (last visited Feb. 17,
2023).
31
Id.
32
Nebraska, South Carolina, Virginia, and Wyoming. Jeffrey A. Singer and Sophia Heimowitz, CATO Institute, Drug Paraphernalia Laws
Undermine Harm Reduction: To Reduce Overdoses and Disease, States Should Emulate Alaska (June 7, 2022), https://www.cato.org/policy-
analysis/drug-paraphernalia-laws-undermine-harm-reduction-reduce-overdoses-disease-states (last visited Feb. 17, 2023).
33
Jeffrey Singer, American Council on Science and Health, Fentanyl Test Strips Save Lives, Yet Most States Ban Them as “Drug Paraphernalia”
(Jan. 19, 2023), https://www.acsh.org/news/2023/01/19/fentanyl-test-strips-save-lives-yet-most-states-ban-them-%E2%80%9Cdrug-
paraphernalia%E2%80%9D-16827 (last visited Feb. 16, 2023); Jeffrey A. Singer and Sophia Heimowitz, CATO Institute, Drug Paraphernalia Laws
Undermine Harm Reduction: To Reduce Overdoses and Disease, States Should Emulate Alaska (June 7, 2022), supra note 30. STORAGE NAME: h0165.CRJ PAGE: 5
DATE: 2/17/2023
Effect of Proposed Changes
HB 165 amends s. 893.145(4), F.S., to remove narcotic-drug-testing products used to test a controlled
substance for fentanyl as described in s. 893.03(2)(b)9., F.S., or a controlled substance analog of fentanyl as
described in s. 893.0356(2), F.S., from the definition of drug paraphernalia. As such, under the bill a person
using, possessing, delivering, or manufacturing FTS is not subject to criminal penalties.
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1: Amends s. 893.145, F.S., relating to “drug paraphernalia” defined.
Section 2: Provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
The bill may have a negative indeterminate impact on jail and prison beds by reducing in the number of
convictions under s. 893.147, F.S., resulting in fewer jail and prison admissions.
According to a preliminary report from the Office of Economic and Demographic Research (EDR), the
Department of Corrections has reported that there were only four new commitments for drug paraphernalia
violations under s. 893.147, F.S., in fiscal year (FY) 2018-2019, one new commitment in FY 2019-2020, one
new commitment in FY 2020-2021, and two new commitments in FY 2021-2022. EDR estimates that based on
the low number of commitments for the last four fiscal years the change made under the bill will not have a
significant impact on the prison population.
34
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
34
EDR, HB 165 – Controlled Substance Testing (Identical SB 164) (on file with House Criminal Justice Subcommittee). STORAGE NAME: h0165.CRJ PAGE: 6
DATE: 2/17/2023
Not Applicable. This bill does not appear to require counties or municipalities to spend funds or take action
requiring the expenditures of funds; reduce the authority that counties or municipalities have to raise
revenues in the aggregate; or reduce the percentage of state tax shared with counties or municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES