‘It will create real harm’: House passes bill creating felonies for fentanyl exposure

Del. Mike Pushkin, D-Kanawha, speaks on the House floor during the floor session on Wednesday, Feb. 14, 2024, in Charleston, W.Va. (Perry Bennett | West Virginia Legislative Photography)

Despite a resounding lack of evidence showing that secondhand exposure to fentanyl is likely to cause any sort of overdose or physical harm in most cases, the West Virginia House on Friday advanced a bill to create felonies for exposing anyone to the drug.

House Bill 5319 would implement two new felonies in state code, one for exposing someone to fentanyl and causing “bodily injury” and another for causing death tied to the exposure. If convicted on the former charge, an individual would face three to 15 years in jail, and for the latter they could face 15 years to life.

Per the proposed code, “exposure” would mean any sort of contact with any form of the drug, including but not limited to skin contact, inhalation, ingestion or contact through a needlestick injury. In order to prove the exposure, a medical professional would have to “immediately” administer a test on the exposed person, and penalties could only be imposed if that test is returned positive for fentanyl or any derivatives.

As originally introduced, the bill would have only applied to people who expose law enforcement officers, among other first responders, to any opioid. A committee substitute approved by House Judiciary on Monday specified the bill would only be for exposure to fentanyl or any of its derivatives. On Thursday, lawmakers in the House adopted an amendment that would make the code section apply when anyone is exposed to the drug through illicit means, not just first responders.

It is already illegal in West Virginia to possess fentanyl or other controlled substances without a prescription.

HB 5319 passed the House on Friday 93-3 with four members absent and not voting. Three Democrats — Dels. Mike Pushkin, D-Kanawha; Evan Hansen, D-Monongalia and Larry Rowe, D-Kanawha — were the only members to vote down the bill.

“I know so much of the strength of the substances we’re talking about, and I understand the depth of the issue and the seriousness of the issue at hand. That’s why I think it’s important that we base what we’re doing here on fact,” Pushkin said. “This bill is based on a false premise.”

Nationwide , there is no evidence that anyone — first responder, law enforcement or otherwise — has ever overdosed or suffered opioid toxicity due to secondhand or passive exposure to fentanyl through contact with their skin or accidental inhalation. Pure fentanyl in liquid form — which is not commonly used by people who use street drugs — can pose higher risks in large doses, but the risk is still significantly low , according to toxicologists.

Misinformation on the issue has increased in recent years as fentanyl has become more common in the unregulated drug market. Media reports falsely claiming that overdoses from accidental exposure are occuring often rely on anecdotal evidence from police and do not include medical tests to back up the claims.

In 2022, in response to the increase in these media reports, a group of more than 400 drug experts from across the United States signed a letter urging media outlets and law enforcement groups to issue corrections on erroneous reports regarding fentanyl exposure, which were often not fact-checked and never provided evidence that the drug was responsible for any adverse reactions.

Those experts have also repeatedly warned that misinformation regarding fentanyl exposure can increase stigma that could cost lives as first responders hesitate to respond to calls or overdoses involving the drugs. In opioid overdoses, seconds can count when administering Narcan to save a life.

“While I’ve been to far too many damn funerals, more than I would like to and many recently of people who used drugs laced with fentanyl, the problem with this bill is it could lead to more funerals,” Pushkin said.

Since 2020, lawmakers in the House have been pushing legislation to criminalize secondhand exposure to fentanyl, but this year’s bill — and the penalties levied by it — go further than those previous versions , which died in House Judiciary in 2020 and 2023 , and passed the House but died in Senate Judiciary in 2021 and 2022 .

Those bills implemented a misdemeanor charge — with a $500 fine and up to one year in jail — for exposing a “government representative” to the drugs, and a felony charge — with a $2,000 fine and up to five years in jail — for any exposure that causes “physical harm.”

Despite medical consensus stating little to no risk is associated with passive or secondhand exposure to fentanyl, several lawmakers in the House asserted Friday that protecting first responders is worth the potential unintended consequences of the bill.

Pushkin — the only member to speak against the bill on Friday — said that while it’s “very unlikely” anyone will be charged under the code due to the requirement for a medical test proving the drug’s presence, he couldn’t condone the risks.

“It could create the effect where people would be less likely to call 911 in the event of an accidental overdose, and I think the unintended consequences of this will create more accidental overdoses,” Pushkin said. “While it may be a well-intentioned bill, I don’t think it’s based on fact and it will create real harm.”

HB 5319 will now advance to the Senate for introduction.

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