Laws that Criminalize Paraphernalia Increase Drug-Related Harm and Should Be Repealed
October 26, 2022
Paraphernalia laws make it illegal to have, sell, or give away nearly any object used in conjunction with illegal drugs. Every state except Alaska penalizes the possession or distribution of syringes, pipes, and other objects people use to get certain drugs into their bodies. This leads to people sharing and re-using syringes, which can spread bloodborne disease like HIV and hepatitis and cause endocarditis and other deadly infections.
Everyone who takes any substance into their body should have a safe way to do so, and law and policy should be directed toward that end. In most cases it is: for example, in rare cases when chipped or damaged beer bottles make their way to consumers, they are quickly recalled. This is not true, however, in the context of illegal substances, where law and policy often cause harm to people who use some drugs.
Paraphernalia laws make it illegal to have, sell, or give away nearly any object used in conjunction with illegal drugs. Every state except Alaska penalizes the possession or distribution of syringes, pipes, and other objects people use to get certain drugs into their bodies. This leads to people sharing and re-using syringes, which can spread bloodborne disease like HIV and hepatitis and cause endocarditis and other deadly infections. Further, because syringe tips become dull very quickly, having to re-use them increases the risk of injury to skin and veins. Paraphernalia laws in many states prohibit fentanyl test strips and other drug checking equipment, making it harder for people to avoid contaminated drugs. Finally, these laws typically criminalize devices for smoking illegal drugs, even though smoking drugs is typically safer than injecting them.
Even where states have created limited exceptions from paraphernalia laws for syringe services programs (SSPs) that distribute syringes and other safer-use supplies, those carveouts are often extremely limited. Many SSP laws, for example, require SSPs to obtain local approval before operating, or provide only limited protections to SSP clients. Laws that permit fentanyl test strips do not impact the legality of other drug checking equipment. And the federal government, which claims to support harm reduction, recently went out of its way to note that federal funds earmarked for harm reduction can not be used to purchase pipes for smoking illegal drugs, even though shifting from injecting to smoking drugs can be an important harm reduction measure.
In a recent NEJM Perspective, my colleague Derek Carr and I explain that the widespread adoption of state paraphernalia laws – and the harm caused by them – is not an accident: Most are based on model legislation created and promoted by the DEA beginning in 1979. It is long past time to change this failed policy approach and adopt laws designed to improve the health of people who use drugs. The National Drug Control Strategy, the U.S.’ official drug policy framework, claims that increasing access to SSPs and drug checking equipment is a “federal drug policy priority” and that the federal government will work to identify and address “obstacles to the safe, legal, and efficient operation of harm reduction programs” such as SSPs. Fully funding the provision of safer use supplies and encouraging states to repeal their paraphernalia laws would be an excellent place to start.
This post written by Corey Davis, JD, MSPH, Director of the Network’s Harm Reduction Legal Project.
The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.
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