Gov. Jared Polis signs fentanyl bill into law

Gov. Jared Polis on Wednesday signed into law a sweeping measure to address the state's runaway fentanyl crisis.

Parts of the bill immediately became law upon the governor's signature; other parts take effect as late as Jan. 1, 2023.

"People are fed up with the pain this new and dangerous drug is inflicting," Polis said shortly before signing House Bill 22-1326. "There are thousands of victims who deserve justice."

Among the most controversial measures of the recently concluded session, HB22-1326 seeks to address the fentanyl crisis through several means: heightened felony charges for possession of 1 to 4 grams of any substance containing fentanyl; harm reduction programs to help people stay alive and treat their addictions, including mandating medication-assisted treatment in jails; an education program; widespread availability of opioid antagonists, such as Naloxone, and testing strips that drug users could use to see if the street drugs they're taking contain fentanyl; criminal investigations into fentanyl overdoses that resulted in death; and monitoring of overdoses and of the bill's own impacts.

House Speaker Alec Garnett, one of the bill's House architects, spoke about its historic investment in harm reduction and reflected on his role in getting the bill passed.

"No time have we ever invested in harm reduction" than in this bill, he said.

"I have never taken on a challenging issue quite like this," the Speaker added. "This is the boldest and most comprehensive step forward" in addressing this epidemic.

Garnett thanked the families – whose loves ones have overdosed after ingesting the deadly drug – for telling their stories and praised their work to try and ensure others won't share their pain. Noting the bill's criminal sentencing provisions, he said peddlers of fentanyl will be held accountable.

But the work isn't done, state Sen. Brittany Pettersen, D-Lakewood, among the bill's sponsors. She warned that fighting the opioid epidemic will take more years of hard work.

Already, a new and deadlier drug, known as ISO, is showing up on the East Coast and is headed toward Colorado, she noted.

"This is the beginning of what we need to do," she said.

To the families who lost loved ones, "your stories were impactful" and heartbreaking, added Sen. John Cooke, R-Greeley, the bill's other prime Senate sponsor.

Cooke said the bill is not perfect but it does so much good – from providing money for treatment to putting away drug dealers. He also pointed to the bill's attention to investigations of overdose deaths from fentanyl.

"We learned from families that law enforcement needs to change its attitude toward fentanyl deaths," he said, adding the bill will help make that change.

The most persistent criticisms against the bill are twofold - that it doesn't go far enough and that it goes too far.

To the former, District Attorney Brian Mason of the 17th Judicial District said "watch how we use these new tools."

"We welcome the scrutiny," Mason said. "Our goal is not lock up low-level users."

To the latter, law enforcement and district attorneys now have tools in a way they've never had before, he said.

"When we need more, we can come back with a track record" of what's been done, Mason said. "No one should die from fentanyl poisoning. This bill is a start."

Families who lost loved ones attended the signing ceremony and read off the names of those who died.

Feliz Sanchez Garcia, who lost her sister in February, said the drug is ravaging an entire generation.

"Our family members were deceived," she said, adding they paid for it with their lives.

Garcia blamed the drug dealers who, she said, peddled poison.

"This legislation is comprehensive and will ensure Colorado tries to get ahead of this crisis," she said.

Standing in the crowd to watch the ceremony was Marshall Weaver, a former drug dealer who told his story of dealing and addiction, and how dealers view laws around possession. He told Colorado Politics that the law – and the money behind it – will help people get the treatment they need. There are so many out there struggling, he added, and this law "will open new doors."

Denver District Attorney Beth McCann said before the signing that she's comfortable with fentanyl felony charges at 1 gram at its lowest rather than zero tolerance. "I think the bill gives us so many good thing: the funding for treatment, treatment in jails, Naloxone, testing strips." She said a defendant on a first charge isn't going to go to jail, nor should they. "We have the tools to charge and look at cases individually as to what's the appropriate resolution. "We will be aggressively charging distribution and distribution resulting in death," she pledged.

The bill comes with a price tag of $38.9 million in its first year, funded in part with American Rescue Plan Act money and the state's general fund dollars. Much of that money - $19.7 million - will go toward the bulk purchase of Naloxone. Another $10 million has been set aside to pay for more crisis management and withdrawal beds.

Three of the four original sponsors were on hand for Wednesday's signing. Missing from the ceremony: Rep. Mike Lynch, R-Wellington, who brought the initial idea to Garnett's attention last year, and who pulled his name off the bill on May 11, primarily over the bill's failure to make any possession of fentanyl a felony and language around whether someone knew or should have known the drug they held had fentanyl in it.

Fentanyl is a cheap, synthetic opioid that, according to the Centers for Disease Control and Prevention, is 50 times stronger than heroin and 100 times stronger than morphine. Its pure form is increasingly smuggled into the United States from Mexico, often in the form of pills that resemble legitimate opioid tablets, like those for oxycodone. But fentanyl is increasingly being mixed into other drugs, from cocaine and meth to faux Xanax and heroin. Experts say virtually every street drug now contains at least some fentanyl.

Illicit fentanyl is attractive to drug cartels because it's cheap, easy to produce and doesn't rely on a season-dependent cultivation cycle, like heroin. It can be made in large batches, year round. As a result, it's replaced the heroin supply in much of the country, forcing people with opioid addictions to use fentanyl instead.

That, coupled with its presence in other drugs like meth, have fueled a spiraling overdose crisis in Colorado and across the country. More than 1,800 Coloradans fatally overdosed last year, the most ever. Nearly half - 901 - died after ingesting fentanyl, the highest annual death toll from any one drug. There were more fentanyl deaths in 2021, for instance, than there were total overdose deaths in 2015.

The crisis has united a broad swath of the state in demanding a response. The division formed around what that response should be. Law enforcement, including district attorneys, county sheriffs and police chiefs, called for a zero-tolerance approach on possessing any amount of felony in any form or substance. Health and harm-reduction experts, meanwhile, called for a public health response focused on more treatment and better access to harm reduction services.

The new law left neither side particularly pleased. Under the law, simple possession of more than 1 gram of any substance containing fentanyl is a felony, a partial reversal of a 2019 law that de-felonized possession of several illicit drugs, including fentanyl, up to 4 grams. One gram could be just 10 pills; harm reduction advocates point out that 10 pills is often less than how much a person with an opioid-use disorder would consume in a single day.

The weight thresholds in the legislation refer to the total weight of the drug, not the actual amount of fentanyl. Illicit pills often include relatively small but still potent amounts of fentanyl, while the bulk of the pills are made of a "filler" substance, like supplements or the active ingredient in Tylenol.

This means that 50 pills would weigh roughly 5 grams but contain a far smaller amount of actual fentanyl. The strength of the pills vary: Some - as much as 42%, according to the Drug Enforcement Administration - contain a lethal dose. Others contain such little fentanyl that people addicted to the substance must take another dose to ward off withdrawal.

The bill tightens penalties for distributing any amount of a substance containing fentanyl, and it creates new penalties for those who distribute the drug and it later leads to someone's death. But the biggest fight over HB 1326 focused on the issue of simple possession and the language around "knowing." Earlier versions of the bill said a defendant caught with 1 to 4 grams could claim they didn't know the drugs they were taking had fentanyl and face a misdemeanor, instead of a felony.

But law enforcement and district attorneys, however, said any defendant could make that claim, making it harder for them to prosecute.

Weaver told Colorado Politics that dealers would use that to get out of the felony charges, along with carrying just enough to keep away from the higher felony charges for possession of more than 4 grams.

Under the law, and as crafted in a last-minute compromise, defendants charged with felony possession of 1 to 4 grams could argue to a judge or jury that they didn't know they possessed fentanyl. If they successfully do so, an ensuing conviction would be a misdemeanor, instead of a felony.

The compromise - and the bill - did not satisfy many of those on either flank of the front-lines. Some in law enforcement criticized the bill for not doing enough to penalize fentanyl possession. Many - including Denver Police Chief Paul Pazen - had wanted to make it a felony to possess any amount of a substance containing fentanyl, whether the user knew it or not. They stressed that fentanyl is too deadly to allow on the street in any form or any amount.

Various experts who work with drug users - public health officials, some treatment providers and harm-reduction advocates - also blasted the bill when it was passed. The possession language is harmful, and would only return the state to the "War on Drugs," they argued, adding the new law would incarcerate more people with substance-use disorders, without addressing root causes or providing better treatment in the state.

Gov. Jared Polis on Wednesday signed into law a sweeping measure to address the state's runaway fentanyl crisis.

Parts of the bill immediately became law upon the governor's signature; other parts take effect as late as Jan. 1, 2023.

"People are fed up with the pain this new and dangerous drug is inflicting," Polis said shortly before signing House Bill 22-1326. "There are thousands of victims who deserve justice." 

Among the most controversial measures of the recently concluded session, HB22-1326 seeks to address the fentanyl crisis through several means: heightened felony charges for possession of 1 to 4 grams of any substance containing fentanyl; harm reduction programs to help people stay alive and treat their addictions, including mandating medication-assisted treatment in jails; an education program; widespread availability of opioid antagonists, such as Naloxone, and testing strips that drug users could use to see if the street drugs they're taking contain fentanyl; criminal investigations into fentanyl overdoses that resulted in death; and monitoring of overdoses and of the bill's own impacts.

House Speaker Alec Garnett, one of the bill's House architects, spoke about its historic investment in harm reduction and reflected on his role in getting the bill passed.

"No time have we ever invested in harm reduction" than in this bill, he said. 

"I have never taken on a challenging issue quite like this," the speaker added. "This is the boldest and most comprehensive step forward" in addressing this epidemic. 

Garnett thanked the families – whose loves ones have overdosed after ingesting the deadly drug – for telling their stories and praised their work to try and ensure others won't share their pain. Noting the bill's criminal sentencing provisions, he said peddlers of fentanyl will be held accountable.

But the work isn't done, Garnett and others acknowledged.

Already, a new and deadlier drug, known as ISO, is already showing up on the East Coast, they noted.

State Sen. Brittany Pettersen, D-Lakewood, who is among the bill's sponsors, warned that fighting the opioid epidemic will take more years of hard work.

"This is the beginning of what we need to do," she said.

To the families who lost loved ones, "your stories were impactful" and heartbreaking, added Sen. John Cooke, R-Greeley, the bill's other prime sponsor.

Cooke said the bill is not perfect but it does so much good – from providing money for treatment to putting away drug dealers. He also pointed to the bill's attention to investigations of overdose deaths from fentanyl.

"We learned from families that law enforcement needs to change its attitude toward fentanyl deaths," he said, adding this bill will help make that change.

The most persistent criticisms against the bill are twofold - that it doesn't go far enough and that it goes too far.

To the former, District Attorney Brian Mason of the 17th Judicial District said "watch how we use these new tools."

"We welcome the scrutiny," Mason said. "Our goal is not lock up low level users."

To the latter, law enforcement and district attorneys now have tools in a way they've never had before, he said.

"When we need more, we can come back with a track record" of what's been done, Mason said. "No one should die from fentanyl poisoning. This bill is a start."

Families who lost loved ones attended the signing ceremony and read off the names of those who died.

Feliz Sanchez Garcia, who lost her sister in February, said the drug is ravaging an entire generation.

"Our family members were deceived," she said, adding they paid for it with their lives.

Garcia blamed the drug dealers who, she said, peddled poison.

"This legislation is comprehensive and will ensure Colorado tries to get ahead of this crisis," she said.

Standing in the crowd to watch the ceremony was Marshall Weaver, a former drug dealer who told his story of dealing and addiction, and how dealers view laws around possession. He told Colorado Politics that the law – and the money behind it – will help people get the treatment they need. There are so many out there struggling, he added, and this law "will open new doors."

The bill comes with a price tag of $38.9 million in its first year, funded in part with American Rescue Plan Act money and the state's general fund dollars. Much of that money - $19.7 million - will go toward the bulk purchase of Naloxone. Another $10 million has been set aside to pay for more crisis management and withdrawal beds. 

Three of the four original sponsors were on hand for Wednesday's signing. Missing from the ceremony: Rep. Mike Lynch, R-Wellington, who brought the initial idea to Garnett's attention last year, and who pulled his name off the bill on May 11, primarily over the bill's failure to make any possession of fentanyl a felony and language around whether someone knew or should have known the drug they held had fentanyl in it.

Fentanyl is a cheap, synthetic opioid that, according to the Centers for Disease Control and Prevention, is 50 times stronger than heroin and 100 times stronger than morphine. Its pure form is increasingly smuggled into the United States from Mexico, often in the form of pills that resemble legitimate opioid tablets, like those for oxycodone. But fentanyl is increasingly being mixed into other drugs, from cocaine and meth to faux Xanax and heroin. Experts say virtually every street drug now contains at least some fentanyl.

Illicit fentanyl is attractive to drug cartels because it's cheap, easy to produce and doesn't rely on a season-dependent cultivation cycle, like heroin. It can be made in large batches, year round. As a result, it's replaced the heroin supply in much of the country, forcing people with opioid addictions to use fentanyl instead. 

That, coupled with its presence in other drugs like meth, have fueled a spiraling overdose crisis in Colorado and across the country. More than 1,800 Coloradans fatally overdosed last year, the most ever. Nearly half - 901 - died after ingesting fentanyl, the highest annual death toll from any one drug. There were more fentanyl deaths in 2021, for instance, than there were total overdose deaths in 2015.

The crisis has united a broad swath of the state in demanding a response. The division formed around what that response should be. Law enforcement, including district attorneys, county sheriffs and police chiefs, called for a zero-tolerance approach on possessing any amount of felony in any form or substance. Health and harm-reduction experts, meanwhile, called for a public health response focused on more treatment and better access to harm reduction services.

The new law left neither side particularly pleased. Under the law, simple possession of more than 1 gram of any substance containing fentanyl is a felony, a partial reversal of a 2019 law that de-felonized possession of several illicit drugs, including fentanyl, up to 4 grams. One gram could be just 10 pills; harm reduction advocates point out that 10 pills is often less than how much a person with an opioid-use disorder would consume in a single day.

The weight thresholds in the legislation refer to the total weight of the drug, not the actual amount of fentanyl. Illicit pills often include relatively small but still potent amounts of fentanyl, while the bulk of the pills are made of a "filler" substance, like supplements or the active ingredient in Tylenol.

This means that 50 pills would weigh roughly 5 grams but contain a far smaller amount of actual fentanyl. The strength of the pills vary: Some - as much as 42%, according to the Drug Enforcement Administration - contain a lethal dose. Others contain such little fentanyl that people addicted to the substance must take another dose to ward off withdrawal.

The bill tightens penalties for distributing any amount of a substance containing fentanyl, and it creates new penalties for those who distribute the drug and it later leads to someone's death. But the biggest fight over HB 1326 focused on the issue of simple possession and the language around "knowing." Earlier versions of the bill said a defendant caught with 1 to 4 grams could claim they didn't know the drugs they were taking had fentanyl and face a misdemeanor, instead of a felony.

But law enforcement and district attorneys, however, said any defendant could make that claim, making it harder for them to prosecute.

A former drug dealer told Colorado Politics that dealers would use that to get out of the felony charges, along with carrying just enough to keep away from the higher felony charges for possession of more than 4 grams. 

Under the law, and as crafted in a last-minute compromise, defendants charged with felony possession of 1 to 4 grams could argue to a judge or jury that they didn't know they possessed fentanyl. If they successfully do so, an ensuing conviction would be a misdemeanor, instead of a felony. 

The compromise - and the bill - did not satisfy many of those on either flank of the front-lines. Some in law enforcement criticized the bill for not doing enough to penalize fentanyl possession. Many - including Denver Police Chief Paul Pazen - had wanted to make it a felony to possess any amount of a substance containing fentanyl, whether the user knew it or not. They stressed that fentanyl is too deadly to allow on the street in any form or any amount. 

Various experts who work with drug users - public health officials, some treatment providers and harm-reduction advocates - also blasted the bill when it was passed. The possession language is harmful, and would only return the state to the "War on Drugs," they argued, adding the new law would incarcerate more people with substance-use disorders, without addressing root causes or providing better treatment in the state.