A basic concept of toxicology is that “the dose makes the poison.” Any substance becomes poisonous to the human body past a certain threshold—even oxygen—and any substance can be safely ingested at a sufficiently low dose. No substance is poison by nature.
The phrase “fentanyl poisoning” started getting traction in the United States during the fall of 2022 when the Drug Enforcement Administration (DEA) successfully catapulted rainbow fentanyl into media headlines. With the DEA’s direct encouragement, it’s been taken up by bereaved parents seeking an alternative to “overdose,” one that the public doesn’t associate with substance use disorder. The idea is that if someone intended to use fentanyl, then they overdosed; if they intended to use something else, then they were poisoned. So it separates fentanyl deaths into tiers: victims who didn’t deserve to die, and “addicts” who made a choice.
“There’s a lot of these opioid deaths that is really poison, poisoning people with fentanyl,” Florida Governor Ron DeSantis (R) said in April. “I’ve met moms and dads who’ve lost their kids because of this, and way more often than not it’s something where, they weren’t drug addicts. They just did something that they didn’t necessarily know what was in [it].”
Usually stigmatizing language comes from the thing it pertains to being criminalized, but in this case it’s the other way around. “Poisoning” is fueling the wave of fentanyl homicide legislation being enacted across the country. Because when you divide fentanyl deaths into two categories, the overdose victims have only themselves to blame. But once it’s a poisoning death, suddenly someone else is to blame.
All exposure to fentanyl you didn’t intend to use is inadvertent exposure.
“The official statistics fail to distinguish between fentanyl overdoses and fentanyl poisonings, classifying all deaths by fentanyl as ‘overdoses,'” stated a 2023 report from the attorney general of Colorado, which for years has been frustrated by its low numbers of fentanyl homicide cases. “However, as this report explains, many fentanyl caused deaths result from poisoning where an individual is given what is believed to be an authentic prescription pill—say, Xanax or Adderall—but is actually a counterfeit pill containing fentanyl.” (To date, there’s no evidence that counterfeit Adderall tablets contain fentanyl.)
The report defined “poisoning” as inadvertent exposure, and “overdose” as using more than what’s safe or recommended. How are those different, when we’re talking about accidental deaths? In the unregulated market, all exposure to fentanyl you didn’t intend to use is inadvertent exposure, whether the amount you did intend to use was “zero” or “safe.”
Many accidental overdose victims intended to use fentanyl, but none of them intended to die. It’s why their manner of death is categorized as “unintentional,” and not “suicide.” People who sell fentanyl don’t intend for buyers to die either; these aren’t homicides any more than suicides.
In Texas, where death certificates are now required to use “fentanyl poisoning” or “fentanyl toxicity” rather than “overdose,” county prosecutors across the state are now bringing the first fentanyl cases to trial. Some have vowed to investigate every fentanyl death as a murder. Legislation pending in Ohio and Tennessee would require death certificates language to make the same change.
Fentanyl homicide legislation is currently pending in Arizona, California, Georgia, Iowa, Maryland, North Carolina, South Carolina and Tennessee.
At the time of this writing, legislation to create or expand fentanyl homicide charges is pending in Arizona, California, Georgia, Iowa, Maryland, North Carolina, South Carolina, Tennessee, and the United States Congress.
South Dakota approved “death by distribution”penalties in March. Alabama finalized fentanyl manslaughter legislation April 11. California, meanwhile, has been taking fentanyl homicide cases to trial for months. In multiple states already prosecuting fentanyl homicide cases, the deaths are described as “poisonings.”
Some states are prosecuting fentanyl deaths as homicides even if the fentanyl was distributed at no charge. Fentanyl being given away for free isn’t a sign of “predatory marketing of fentanyl to minors”; it’s just people sharing with friends and acquaintances because that’s what you do. It’s kids being prosecuted for the deaths of other kids.
Many fentanyl homicide convictions carry life sentences; sometimes the death penalty. In many cases, the person being prosecuted was a loved one of the person who died. The ones that make the news often involve a young parent and a young child. Charging a victim’s friends and family with felony murder doesn’t make risk of fatal overdose go down. Often it makes the risk go up—by making people afraid to call 911, by entrapping them in the criminal-legal system, by leaving them to seek out suppliers they don’t know.
“Overdose” isn’t more accurate than “poisoning.” Neither of them really describe what’s happening.
The DEA and the media talk about drug deaths in terms of purity—pills being “adulterated” or “contaminated” or “laced with” fentanyl—to explain how fentanyl-poisoning victims were unaware that the pill they took contained a “lethal dose.” Which is the same problem facing people who use fentanyl regularly, because the issue isn’t really purity; it’s potency. It’s the dose that makes the poison.
“Overdose” isn’t more accurate than “poisoning.” Neither term really describes what’s happening. If someone who “overdosed” on fentanyl had no way of knowing the dose, what does it matter that they knew it wasn’t Percocet?
Fentanyl test strips are binary. They don’t indicate anything about the quantity of fentanyl in a sample, just whether there’s any at all. If knowing whether or not a pill contains any fentanyl was enough, people who use fentanyl pressed pills knowingly—the people who “overdose”—wouldn’t be dying. The harm comes from not knowing how much fentanyl.
This is what makes pharmaceutical fentanyl safer than fentanyl bought online or on the street. The chemical makeup is the same—fentanyl is fentanyl—but a dose of pharmaceutical fentanyl is a “safe and recommended” amount. Whereas any dose of unregulated fentanyl is “inadvertent,” because the amount is neither consistent nor known. Pharmaceutical fentanyl is safer because its Food and Drug Administration-required labeling tells you the potency, not just the purity. It’s safer because it’s regulated.
Image via Multnomah County, Oregon
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