Alabama SB39: Another Shot in the Opioid Battle

On March 28, 2018, Alabama Senate Bill 39 was sent to Governor Ivey’s desk for signature. SB39 introduces stiffer penalties related to fentanyl possession and distribution. It amounts to a local effort forming part of a nationwide, multi-pronged response to the opioid epidemic that has plagued the country in recent years. While this bill is not yet law as of the date of this article, it came to the Governor’s desk with broad support from both the House and Senate, and an awareness of its contents (and its place in the larger opioid crisis) is valuable.

Fentanyl is a particularly strong opioid that has of recent been the target of much abuse. The National Institute on Drug Abuse notes that in 2016, fentanyl contributed to more than 20,000 overdose deaths; medical examiners reported that fentanyl or fentanyl mixtures were involved in the deaths of the musicians Prince and Tom Petty. SB39 includes several related features stiffening enforcement of abuses of fentanyl and related drugs: the bill would:

1. add fentanyl and related analogues (e.g., butyrfentanyl and acetyl fentanyl) to Schedule I of the controlled substances list;
2. make a person (unless otherwise authorized by law) who possesses, distributes, or traffics such drugs guilty of a felony, and conviction for distribution subject to enhanced penalties;
3. include under the meaning of “trafficking” possession of fifty or more individual packages of the substance

A related proposal that was introduced but ultimately rejected by the legislature was a change to allow prosecution of physicians for over-prescribing opioids.

Of particular note are the low thresholds set for amounts of fentanyl and fentanyl analogues — an acknowledgment of both the potency of the drug and the severity of the current crisis. The bill would amend §13A-12-231 of the Alabama Code to make possession of one gram or more of fentanyl or a fentanyl analogue a felony of “trafficking in illegal drugs,” and includes substantial fines. As noted above, conviction can also occur if one is in possession of 50 or more individual packages of fentanyl or a fentanyl analogue, notwithstanding the fact the combined weight of the fentanyl or fentanyl analogues in the packages may be less than one gram.

At this point of the opioid epidemic, some physicians may well be experiencing opioid fatigue. News articles, legislative and regulatory initiatives, personal testimonies, seminar topics, and other avenues have been bringing this issue to the health care industry’s attention for years now. It is a complex problem, with a multiplicity of root causes and a variety of faces. The several penalties included in this recent bill are a reminder that staying abreast of all the many changes, initiatives and tools aimed at addressing opioid abuse is well worth the time and attention.

Whatever the eventual fate of SB39, this will not be the last shot fired in the response to opioid abuse. This bill is a reminder that the responses to this crisis are varied, and that although the opioid epidemic is a national problem, it also plays out on the state and local level. As “opioid” refers to a diverse range of drugs, the “opioid epidemic” refers to a complex quagmire. Being well aware of the problem, in general, is no substitute for familiarity with the many paths being carved through it. In addition to introducing potential changes to the criminal law code such as SB39, Alabama has also taken such steps as forming the Alabama Opioid Overdose and Addiction Council, formed in August 2017 by Governor Ivey, which has made such recommendations as improving and modernizing Alabama’s prescription drug monitoring program; the Alabama Department of Public Health is leveraging funding from the CDC’s Data-Driven Prevention Initiative (DDPI) on Opioid and Heroin Abuse to identify stakeholders of and solutions to the problem; Alabama Attorney General Steve Marshall filed a lawsuit in February 2018 against one of the largest drug manufacturers in the nation.

This is a constantly changing landscape, and the opportunity for missteps abound. Some of these missteps have consequences that reach beyond issues of reimbursement and licensure. The fate of SB39 is worth watching — its wide support in both chambers of the Alabama Legislature make it a prime candidate for signing into law by the governor. However, beyond offering a description of this one bill, this present article should serve as a reminder that opioid-related news deserves close attention because of, not despite, the frequency of the topic. New laws and initiatives are coming out regularly, and if you’ve seen one you have not seen them all.

Article written by Chris Thompson, an attorney with Burr & Forman LLP practicing in the firm’s healthcare group. Burr & Forman, LLP, is a partner with the Medical Association. Read other articles from Burr & Forman LLP.