Why It Matters
The Drug Enforcement Administration has had difficulties keeping pace with new substances that chemists slightly alter to fall outside existing controls, a problem law enforcement has called "whack-a-mole." A new Congressional Research Service (CRS) report "Classwide Scheduling of Controlled Substances" (R49477) examines classwide scheduling of controlled substances, in which entire families of chemically similar drugs are controlled rather than one substance at a time, and outlines options and tradeoffs for Congress.
Scheduling fentanyl-related substances (FRS) as a class, the report says, "contributed to a shift to the production of other classes of uncontrolled psychoactive substances." Some experts argue that classwide FRS controls contributed to the emergence of nitazenes on the illicit market, and some point to China's actions to control nitazenes as the reason orphines subsequently appeared. Nitazenes and orphines are both potent synthetic opioids that elicit effects similar to those of fentanyl, according to the Congressional Research Service report.
The Big Picture
The Controlled Substances Act (CSA) gives the Drug Enforcement Administration (DEA) two main tools: permanent administrative scheduling, which requires an eight-factor analysis and a binding scientific review from the Department of Health and Human Services; and temporary emergency scheduling, capped at two years plus one additional year if permanent proceedings are underway. A third route, legislative scheduling, belongs to Congress rather than DEA and bypasses administrative fact-finding entirely.
The report identifies a structural problem with applying temporary authority to large substance classes, namely that DEA and HHS may not have sufficient time or resources to complete the required analysis for every substance before a temporary order expires. DEA issued a temporary order placing FRS in Schedule I in 2018, the first administrative classwide scheduling action. Congress extended that order 10 times, with both Presidents Trump and Biden signing extensions, before making it permanent through the Halt All Lethal Trafficking of Fentanyl Act, P.L. 119-26.
Despite the breadth of that order, the Government Accountability Office reported that in fiscal years 2019 and 2020, U.S. attorneys relied on the classwide order in only three cases involving analogues not individually scheduled. In fiscal year 2023, 10 of 269 fentanyl analogue sentencing cases involved non-scheduled analogues.
The report lays out options for Congress: expand classwide scheduling to cover nitazenes and orphines; amend DEA's temporary scheduling time limits; or legislate directly, which allows faster action but places scientific judgments in statute rather than the regulatory process.
The Bottom Line
CRS reports that it has not identified any instance of the Drug Enforcement Administration (DEA) implementing classwide scheduling through formal rulemaking or pursuant to U.S. treaty obligations. For the Trump administration, that gap creates a near-term policy decision: whether to seek expanded executive scheduling authority, coordinate with Congress on targeted classwide legislation, or rely on the existing substance-by-substance process while the illicit market continues to adapt.
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