Illicit Fentanyl and Weapons of Mass Destruction: International Controls and Policy Options

INSIGHTi

Illicit Fentanyl and Weapons of Mass
Destruction: International Controls and Policy
Options
March 28, 2022
As synthetic opioid overdose deaths in the United States reach historic levels, some policy stakeholders
have sought U.S. action in designating fentanyl as a weapon of mass destruction (WMD). Such calls have
also prompted congressional interest. Although a statutory designation of fentanyl as a WMD does not
appear necessary for additional executive branch action to address fentanyl as an illicit drug or chemical
weapon, Congress may consider developing legislation to improve upon perceived shortcomings in the
U.S. government’s approach to addressing fentanyl.
Background
Various observers draw rhetorical comparisons between fentanyl abuse and WMDs. For example, the
congressionally mandated Commission on Combating Synthetic Opioid Trafficking assessed in February
2022 that “[i]n terms of loss of life and damage to the economy, illicit synthetic opioids have the effect of
a slow-motion weapon of mass destruction.”
Others, including some Members of Congress, note the possible use of fentanyl as a weapon; in media
reports, observers have speculated that fentanyl’s increasing availability may prompt U.S. adversaries and
non-state actors to weaponize the drug.
Governments have also recently committed to restricting the use of central nervous system-acting (CNS)
chemicals, including fentanyl, in law enforcement and other security operations. (In 2002, the Russian
military reportedly deployed an aerosolized form of fentanyl to incapacitate terrorists holding hostages in
a Moscow theater; the gas also killed more than 120 of the hostages.)
Narcotics Controls
Most U.S.-consumed illicit fentanyl is foreign-sourced—and combating such foreign production and
U.S.-destined trafficking flows remains an ongoing congressional topic of oversight and legislation.
Within the past three years, Mexico has emerged as the primary source and transit point for illicit fentanyl
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into the United States. Producers of illicit fentanyl mostly source precursor chemicals from Asian
countries, especially China.
Fentanyl is subject to strict international controls that limit its legal use for medical and scientific
purposes. Pursuant to the Single Convention on Narcotics Drugs of 1961, as amended (to which 154
countries are party, including the United States), more than two dozen additional fentanyl variants
(analogues) are also subject to international controls. Several chemical inputs (precursors) used in the
production of fentanyl are also subject to international controls under Table I of the 1988 Convention
Against Illicit Traffic of Narcotics Drugs and Psychotropic Substances (191 states parties, including the
United States). In the United States, fentanyl and its key precursors are also subject to domestic regulatory
control.
On December 15, 2021, President Joe Biden issued Executive Order 14059, which declared a national
emergency with respect to international trafficking of illegal drugs, including “fentanyl and other
synthetic opioids.” Invoking the International Emergency Economic Powers Act (IEEPA; 50 U.S.C.
§§1701 et seq.), this order authorizes the Secretary of the Treasury to impose a variety of sanctions on
foreign persons engaging in listed activities related to “the international proliferation of illicit drugs or
their means of production.”
Chemical Weapons Controls
The Chemical Weapons Convention (CWC), which has 193 states parties, including the United States,
prohibits the development, production, transfer, stockpiling, and use of chemical and toxin weapons—and
certain precursors. The CWC contains three schedules of chemicals “identified for the application of
[CWC] verification measures,” but the aforementioned treaty prohibitions also apply to unscheduled
chemicals. The convention includes several provisions requiring states parties to regulate the transfer of
chemicals that could be used for chemical weapons purposes.
The CWC permits the use of chemicals otherwise prohibited under the treaty for “domestic riot control
purpose.” However, a December 1, 2021, CWC states parties statement clarified that such permitted use
does not include the “aerosolised use” of CNS chemicals, such as fentanyl. A 2018 OPCW Scientific
Advisory Board report explained that aerosolized use of such chemicals in law enforcement has “resulted
in permanent harm and death due to an irreversible action on life processes.”
U.S. law prohibits activities concerning chemical weapons, including trafficking in or producing
weaponized fentanyl. For example, Section 229 of the Chemical Weapons Convention Implementation
Act of 1998 (P.L. 105-277; 18 U.S.C. §229) forbids producing, transferring, and using chemical weapons.
Selected Proposals
Role of DHS’s CWMD Office
On February 22, 2019, the Department of Homeland Security’s (DHS’s) Assistant Secretary for
Countering Weapons of Mass Destruction (CWMD) circulated a memorandum advocating the use of
“appropriate CWMD authorities against fentanyl.” Made public by Task and Purpose, the memorandum
explains that the CWMD Office, scheduled to terminate in December 2023, could apply its “assets and
capabilities to the fentanyl problem through the lens of WMD.” The Homeland Security Act of 2002, as
amended (P.L. 107-296; 6 U.S.C. §§101, et seq.), which established the CWMD Office, lacks a provision
for classifying fentanyl as a WMD.

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For FY2021, DHS proposed a program change to the Regional Medical Operations Group (RMOG), a
part of the CWMD Office. The group’s tasks would have included “filling information gaps into
investigations and responses to fentanyl or ricin.” DHS’s FY2022 budget request did not contain such a
proposal, the intended impact of which is unclear. According to DHS, RMOG is a regionalized network of
CWMD federal personnel who possess “qualifications primarily in medicine and public health.”
DOD Designation
The DHS memo published by Task and Purpose in 2019 also stated that senior Defense Department
(DOD) leaders “have proposed formally designating fentanyl as a WMD material.” Definitions in current
law (e.g., 50 U.S.C. §2302 and 18 U.S.C. §2332a) broadly cover weapons that can cause mass casualties
through the release of “toxic or poisonous weapons or their precursors” as well as biological and
radioactive materials, but do not list specific substances of concern, including fentanyl.
Executive Order
In July 2021, an advocacy organization sent an open letter, which included high-level former officials as
signatories, to President Biden, requesting that he identify fentanyl as a WMD by executive order. This
organization has argued elsewhere that President Biden should issue such a designation pursuant to the
authorities in IEEPA, which provides the President broad authority to regulate a variety of economic
transactions following a declaration of national emergency. As noted, President Biden’s December 2021
Executive Order declared a national emergency with respect to international trafficking of illicit narcotics,
including fentanyl. Congress may consider whether to pursue the matter further through legislation and
oversight.



Author Information

Paul K. Kerr
Liana W. Rosen
Specialist in Nonproliferation
Specialist in International Crime and Narcotics





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