[Hi! This is Larry, this blog’s occasional legal pundit, with a few ideas I’d like to share. But first, let me repeat: I’m retired, not looking for new clients, and not in business. I have opinions, but no ulterior motives. Fred was going to write this week’s post, but he’s lost in research, so I’m the last-minute substitute.

Fred’s topic was very much post-election, i.e. to speculate about what other catastrophes might befall us here on planet Earth, but he got lost in the data. It’s always a mistake to start any project with You Tube. One tends to get buried in “information” that really isn’t informative. Remember when the U.S. did moon shots and lunar landings back in the 1960’s? We had a spate of bad weather at home back then, and my Great Aunt blamed it on the U.S. space program. That was interesting, of course, – I discovered we had a crank in the family – but not important. She knew absolutely nothing about weather forecasting, or the space program. Folks who repeated her views were accurate in that they reported what she thought.  But doing that didn’t tell us much about the world because my aunt didn’t know what she was talking about.

I’m not sure why all that comes to mind, except perhaps because of the similarities between my aunt’s views of the weather and today’s punditry. We all lived through the recent episode of perpetually negative polls – Donald Trump couldn’t win the Republican nomination, then he couldn’t win the election – and punditry, warning that he should drop out of the race before he ruined the Republican Party. Come to find out, Trump will be the next President and the Republicans will retain control of the U.S. House of Representatives and the Senate. Not bad for a loser like Trump!  And the Republicans elected a bunch of Governors as well.

Democrats, or at least those in the Chattering Class, seem to be in denial about this. That’s what happens when people in a closely-knit group suffer a major disconfirmation of a strongly held belief.[1] Expect them to double-down and be even shriller before they’re done. That’s not my field – perhaps Phil will offer some comments at a later date – so I’m going to change the subject, from politics and grieving Democrats, to recent developments in something that should concern all of us.]

Of course, I’m talking about the catastrophic spread of opioids, natural and synthetic, in today’s drug culture. I’m not an expert, but I have done a couple of blogs on the subject[2], and there’s new information out there that’s worth looking at. And by “information” I mean concrete examples about what’s happening, not some amateur’s unsupported opinions [or bogus videos].


So this brings us to the story for today. As we know from our previous work on heroin overdose[3], there are two forms of opioid: (i) the “natural” version, based on the opium poppy; the poppies are grown in Afghanistan, and are the source of heroin; and (ii) various synthetic opioids – produced in laboratories from chemicals, and not derived from the poppy.  In general the synthetic compounds, many of them grouped as “fentanyl,” are far more potent than natural heroin. They are made in laboratories, but probably not in someone’s kitchen, because the technology isn’t there yet.[4] Or so I’m told.

Known opioids – natural and synthetic -are federally regulated, although that doesn’t necessarily stop organized crime from making or selling them. Nevertheless, state and federal pressure does help restrict the illicit supply; or at least I like to think so.

Recently a new and deadly opioid entered the market. “’Pink’, known to chemists as U47700, comes from a family of deadly synthetic opioids that are far more potent than heroin, and is imported to the United States mainly from China.”[5] How about that? Another benefit to Americans from world trade! Much more deadly[6] and probably less expensive illicit drugs are available from overseas, so customers don’t have to buy American!

Pink was unregulated largely because federal and state authorities didn’t know about it; and, being technically not illegal in most states, there were no obvious criminal liabilities for owning it! But that changed when Pink killed at least 46 people in 2015 and 2016. [7] On November 14 our federal government, through its Drug Enforcement Administration, used its emergency authority to add Pink to “Schedule I” of DEA’s list of controlled substances.[8]

The Controlled Substances Act

Is this important? Yes. The DEA is responsible for implementing and enforcing titles II and III of the Comprehensive Drug Abuse Prevention and Control Act of 1970, as amended. [9] DEA collectively refers to Titles II and III as the “Controlled Substances Act.” Implementing regulations are published in the Code of Federal Regulations (the “CFR”). This legal/ bureaucratic enterprise is designed to “prevent, detect, and eliminate the diversion of controlled substances and listed chemicals into the illicit market while ensuring an adequate supply is available for the legitimate medical, scientific, research, and industrial needs of the United States.”[10]  All this is necessary, of course, “to protect the public health and safety.”

Schedule I

So where are the controlled substances called out? Answer: “In the Code of Federal Regulations.”[11] I would say “of course,” except that there are other ways to do it. Anyway, the most highly regulated substances are listed in Schedule I.[12] There are a lot of them, and “Pink,” or U47700, will appear as subparagraph (h) 18 of Schedule I. The listing will be valid for only 2 years, with a possible 1 year extension, unless there are further regulatory proceedings.

Next Steps

How many substances are in Schedule I? Well, you might take a look at Wikipedia to find out[13], but that wasn’t helpful to me; or you could look at Schedule I, except it’s not easy to get a current version from the Government Printing Office. I expect there are lots of recent changes – additions? – due to an uptick in opioid research and development. The Chinese, along with the Mexicans, Russians, etc. may be innovating at a good speed.

Anyway, DEA maintains an unofficial cuff list of what’s currently on record, or recently on record,[14] and going by that I count 152 substances in Schedule I, including “Pink.”. That’s a lot to look for, I guess.

How many will there be next year? I don’t know. Probably more.


[1] What’s “disconfirmation?” Check out the Wiktionary at https://en.wiktionary.org/wiki/disconfirmation . For “disconfirmed expectancy,” see the Wikipedia entry at https://en.wikipedia.org/wiki/Disconfirmed_expectancy For the classic study, read Festinger, Riecken, and Schachter When Prophecy Fails (1956). Flying saucers!

[2] See the blog of 2016/09/15, Drug Disaster, available at https://opsrus.wordpress.com/2016/09/15/1255/ ; and the blog of  2016/09/21, Questions, Questions, available at  https://opsrus.wordpress.com/2016/09/21/questions-questions/

[3] See the blog of  2016/09/21, Questions, Questions, available at  https://opsrus.wordpress.com/2016/09/21/questions-questions/

[4] At least that’s what Popular Science said last year. See Popular Science, Ossola, Home-Brewed Synthetic Opioids Are Finally A Reality (August 13, 2015), available at http://www.popsci.com/home-brewed-synthetic-opioids-are-finally-reality

[5] See Department of Justice, Drug Enforcement Administration, Schedules of Controlled Substances:  Temporary Placement of U-47700 into (2016/11/14), available at https://s3.amazonaws.com/publicinspection.federalregister.gov/2016-27357.pdf  Henceforth we’ll call this “Temporary Placement” at __.

[6] See NBC News, Connor, Feds Move to Ban Pink, Heroin Substitute That’s Killed Dozens (2016/11/10 ), available at http://www.foxnews.com/health/2016/11/10/dea-temporarily-bans-synthetic-opioid-pink-after-46-deaths.html “This stuff is so powerful that if you touch it, you could go into cardiac arrest … The problem is that if you have  a credit card and a cell phone, you have access to it.”

[7] See Fox News, DEA temporarily bans synthetic opioid pink after 46 deaths (2016/11/10), available at http://www.foxnews.com/health/2016/11/10/dea-temporarily-bans-synthetic-opioid-pink-after-46-deaths.html

[8] See “Temporary Placement” at __.

[9] See 21 U.S.C. §§801–971.

[10] See Temporary Placement at p. 2.

[11] See 21 C.F.R. Part 1308.

[12] See 21 C.F.R. Part 1308, §1308.11, Schedule I.

[13] It wasn’t really helpful and seemed a bit out of date, but you can find it under “Synthetic Opioids” at https://en.wikipedia.org/wiki/Category:Synthetic_opioids

[14] The one I found, the unofficial one, is available from the Cornell Law School, LII, and from DOJ at https://www.deadiversion.usdoj.gov/21cfr/cfr/1308/1308_11.htm