Existing law, the California Uniform Controlled Substances Act (the act), classifies controlled substances into 5 designated schedules, with the most restrictive limitations generally placed on controlled substances classified in Schedule I, and the least restrictive limitations generally placed on controlled substances classified in Schedule V. The act restricts the prescription, furnishing, possession, sale, and use of controlled substances, and makes a violation of those laws a crime, except as specified. Existing law also defines drug paraphernalia and prohibits, among other things, the manufacture, sale, and possession, as specified, of drug paraphernalia. Existing law excludes from these prohibitions any testing equipment that is designed, marketed, used, or intended to be used to analyze a substance for the presence of fentanyl, ketamine, gamma hydroxybutyric acid, or any analog of fentanyl.

This bill would add xylazine, as specified, to Schedule III of the act, except in certain circumstances relating to veterinary use, only after xylazine is placed on Schedule III of the federal Controlled Substances Act. The bill would also exclude from the prohibitions on paraphernalia any testing equipment to analyze a substance for the presence of xylazine and other emerging adulterants as determined by the State Department of Public Health. By creating a new crime, the bill would establish a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, the California Uniform Controlled Substances Act (the act), classifies controlled substances into 5 designated schedules, with the most restrictive limitations generally placed on controlled substances classified in Schedule I, and the least restrictive limitations generally placed on controlled substances classified in Schedule V. The act restricts the prescription, furnishing, possession, sale, and use of controlled substances, and makes a violation of those laws a crime, except as specified. Existing law also defines drug paraphernalia and prohibits, among other things, the manufacture, sale, and possession, as specified, of drug paraphernalia. Existing law excludes from these prohibitions any testing equipment that is designed, marketed, used, or intended to be used to analyze a substance for the presence of fentanyl, ketamine, gamma hydroxybutyric acid, or any analog of fentanyl.

This bill would add xylazine, as specified, to Schedule III of the act, except in certain circumstances relating to veterinary use, only after xylazine is placed on Schedule III of the federal Controlled Substances Act. The bill would also exclude from the prohibitions on paraphernalia any testing equipment to analyze a substance for the presence of xylazine and other emerging adulterants as determined by the State Department of Public Health. By creating a new crime, the bill would establish a state-mandated local program.

Existing law establishes within the Health and Human Services Agency, a State Department of Public Health. Existing law requires a county coroner to inquire into and determine the circumstances, manner, and cause of certain deaths. Existing law either requires or authorizes a county coroner, under certain circumstances, to perform, or cause to be performed, an autopsy on a decedent.

This bill would require a coroner or medical examiner to conduct a toxicology analysis or drug screening if those tests are required to confirm the cause and manner of a death, as specified, and would require this analysis in any death where the death is suspected to be due to a drug overdose to test for the presence of specified substances including xylazine, fentanyl, and ketamine. The bill would require that a toxicology analysis or drug screening conducted pursuant to these provisions be reported to the department. By imposing additional duties upon local officials, the bill would impose a state-mandated local program.

Existing law, the California Uniform Controlled Substances Act (the act), classifies controlled substances into 5 designated schedules, with the most restrictive limitations generally placed on controlled substances classified in Schedule I, and the least restrictive limitations generally placed on controlled substances classified in Schedule V. The act restricts the prescription, furnishing, possession, sale, and use of controlled substances, and makes a violation of those laws a crime, except as specified. Existing law also defines drug paraphernalia and prohibits, among other things, the manufacture, sale, and possession, as specified, of drug paraphernalia. Existing law excludes from these prohibitions any testing equipment that is designed, marketed, used, or intended to be used to analyze a substance for the presence of fentanyl, ketamine, gamma hydroxybutyric acid, or any analog of fentanyl.

This bill would add xylazine, as specified, to Schedule III of the act, except in certain circumstances relating to veterinary use, and use, only after xylazine is placed on Schedule III of the federal Controlled Substances Act. The bill would also exclude from the prohibitions on paraphernalia any testing equipment to analyze a substance for the presence of xylazine and other emerging adulterants as determined by the State Department of Public Health. By creating a new crime, the bill would establish a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law establishes within the Health and Human Services Agency, a State Department of Public Health. Existing law requires a county coroner to inquire into and determine the circumstances, manner, and cause of certain deaths. Existing law either requires or authorizes a county coroner, under certain circumstances, to perform, or cause to be performed, an autopsy on a decedent.

This bill would require a coroner or medical examiner to conduct a toxicology analysis or drug screening if those tests are required to confirm the cause and manner of a death, as specified, and would require this analysis in any death where the death is suspected to be due to a drug overdose to test for the presence of specified substances including xylazine, fentanyl, and ketamine. The bill would require that a toxicology analysis or drug screening conducted pursuant to these provisions be reported to the department. By imposing additional duties upon local officials, the bill would impose a state-mandated local program.

Existing law, the California Uniform Controlled Substances Act (the act), classifies controlled substances into 5 designated schedules, with the most restrictive limitations generally placed on controlled substances classified in Schedule I, and the least restrictive limitations generally placed on controlled substances classified in Schedule V. The act restricts the prescription, furnishing, possession, sale, and use of controlled substances, and makes a violation of those laws a crime, except as specified. Existing law also defines drug paraphernalia and prohibits, among other things, the manufacture, sale, and possession, as specified, of drug paraphernalia. Existing law excludes from these prohibitions any testing equipment that is designed, marketed, used, or intended to be used to analyze a substance for the presence of fentanyl, ketamine, gamma hydroxybutyric acid, or any analog of fentanyl.

This bill would add xylazine, as specified, to Schedule III of the act, except in certain circumstances relating to veterinary use, and would also exclude from the prohibitions on paraphernalia any testing equipment to analyze a substance for the presence of xylazine and other emerging adulterants as determined by the State Department of Public Health. By creating a new crime, the bill would establish a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

AB 3029 (Bains) - Controlled substances

Bill Summary:

AB 3029 adds xylazine as a Schedule III drug under California’s Uniform Controlled Substances Act (UCSA), contingent on a similar change to federal law.

Fiscal Impact:

• Unknown, potentially significant cost pressure to the state funded trial court system (Trial Court Trust Fund, General Fund) to adjudicate criminal penalties created by this bill. Certain rights to the defendants are attached to criminal proceedings, including the right to a jury trial and the right to counsel (at public expense if the defendants are unable to afford the costs of representation) and creating new felonies, with increased penalties, could lead to lengthier and more complex court proceedings with attendant workload and resource costs to the court. The fiscal impact of this bill to the courts will depend on many unknown factors, including the numbers of violations alleged to have occurred and the factors unique to each case. An eight hour court day costs approximately $8,000 in staff in workload. If the bill results in only 12 or more days spent in court, trial court costs could be in the hundreds of thousands of dollars. While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources and to increase the amount appropriated to backfill for trial court operations. The Budget Act of 2024, for the fiscal year beginning July 1, 2024, includes a $97 million reduction to the trial courts, a commensurate reduction of up to 7.95 percent to the budget for the state-level judiciary, and a reduction of the trial court state-level emergency reserve in the Trial Court Trust Fund from $10 million to $5 million. The Budget Act also includes a $37.3 million General Fund backfill for the Trial Court Trust Fund to address the continued decline in civil fee and criminal fine and penalty revenues expected in fiscal year 2024‒25.
  
• Costs (local funds, General Fund) to the counties of an unknown but significant amount to incarcerate people for crimes related to xylazine. The average annual cost to incarcerate one person in county jail is approximately $29,000. Actual incarceration costs will depend on the number of convictions and the length of each sentence. Although county incarceration costs are generally not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding resulting from 2011 public safety realignment. (See Staff Comments)

Background:

Through independent statutory schemes, the federal government and California restrict the use of certain drugs and substances. Both schemes classify a controlled substance into one of five “schedules” based on a number of factors, including the substance’s risk for abuse or dependence and whether it has currently accepted medical uses.

Schedule I substances pose the greatest risk and are most highly regulated; substances in each subsequent tier pose a lesser risk in comparison. For example, in California, heroin, cocaine, and LSD are Schedule I drugs, while codeine and buprenorphine are Schedule V drugs.

This bill places xylazine on Schedule III of the UCSA, but specifies that this provision does not take effect until the federal government places xylazine on the federal controlled substances schedule. California is not required to but has generally aligned its regulation of controlled substances with the federal schedules.

Classifying a substance as a Schedule III substance also criminalizes a host of activities related to the substance. Possession, possession for sale, trafficking, manufacturing, and offering to manufacture a non-narcotic Schedule III substance are all criminal offenses. Punishments for these offenses range from one to seven years in county jail, plus significant fines in some cases.

According to CDPH, xylazine (also known as “tranq”) is a non-opioid animal tranquilizer that has been connected to overdoses. The extent to which xylazine has proliferated in California drug markets is unclear. In 2022, the Drug Enforcement Administration (DEA) reported that its identification of xylazine-positive overdose deaths in the western United States increased by 750% in recent years, from four deaths in 2020 to 34 in 2021. On the other hand, in a November 2023 letter CDPH described xylazine as “present” in California, but noted that the drug had not penetrated the state’s drug supply as extensively as it has in other regions.

Proposed Law:

This bill adds xylazine as a Schedule III drug under the UCSA, contingent on a similar change to federal law.

Staff Comments: Lengthy criminal sentences do not effectively deter crime. A “major analysis of more than 100 studies concluded that it was a ‘criminological fact’ that incarceration is no better at reducing reoffending than noncustodial sanctions such as probation.” (Committee on Revision of the Penal Code, Annual Report and Recommendations, 2021.) In light of the growing cost of incarceration and its limited utility in deterring crime, both the Little Hoover Commission and the Committee on Revision of the Penal Code have encouraged sentencing reform in California. Increasing penalties, as proposed in this bill, will result in increased incarceration costs to the counties and the state, and will unlikely deter crime. Depending on the number of convictions affected by this bill, those costs may be in the millions of dollars annually.

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SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: AB 3029 Hearing Date: July 2, 2024

Subject: Controlled substances

HISTORY

Source: Author

Prior Legislation: AB 1598 (Davies), Ch. 201, Stats. 2022

Support: Peace Officers Research Association of California

Opposition: ACLU California Action

Assembly Floor Vote: 73 - 0

PURPOSE

The purpose of this bill is to add xylazine and its derivatives to Schedule III of the state Uniform Controlled Substances Act with specified exemptions, contingent upon it receiving the same designation under the federal Controlled Substances Act, and to exclude from the definition of “drug paraphernalia” any testing equipment that is designed, marketed, used, or intended to be used, to analyze for the presence of xylazine and other emerging adulterants, as defined.

Existing law establishes the California Uniform Controlled Substances Act, which regulates controlled substances. (Health & Saf. Code, § 11000 et seq.)

Existing law classifies controlled substances into five schedules according to their danger and potential for abuse. Provides that Schedule I controlled substances have the greatest restrictions and penalties, including prohibiting the prescribing of a Schedule I controlled substance. (Health & Saf. Code, §§ 11054-11058.)

Existing law makes the possession of a Schedule III controlled substance that is not a narcotic drug a misdemeanor, unless upon the prescription physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, and punishable by imprisonment in a county jail for a period of not more than one year, except that such person may instead be punished pursuant to Penal Code section 1170 (h) if that person has one or more prior convictions for specified offenses. (Health & Saf. Code § 11377, subd. (a).)

Existing law defines “drug paraphernalia” as all equipment, products and materials of any kind which are designed for use or marketed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human a body a controlled substance. (Health & Saf. Code, §§ 11014.5, subd. (a), 11364.5, subd. (a).)

Existing law provides that drug paraphernalia includes testing equipment designed for use or marketed for use in identifying, or in analyzing the strength, effectiveness, or purity of controlled substances. (Health & Saf. Code, §§ 11014.5, subd. (a)(4), 11364.5, subd. (d)(4).)

Existing law exempts testing equipment designed, marketed, intended to be used, or used, to test a substance for the presence of fentanyl, ketamine, gamma hydroxybutyric acid, or any analog of fentanyl from the definition of “drug paraphernalia.” (Health & Saf. Code, §§ 11014.5, subd. (d), 11364.5, subd. (g).)

This bill adds xylazine and other emerging adulterants as determined by the State Department of Public Health to the provision of law that excludes testing equipment designed, marketed, intended to be used, or used, to test a substance for the presence of specified substances from the definition of “drug paraphernalia.”

This bill adds the following to Schedule III:

• Xylazine.
• Xylazine-M (2,6Mich dimethylaniline).
• Xylazine-M (N-thiourea-2,6-dimethylaniline).
• Xylazine-M (sulfone-HO-) isomer 2.
• Xylazine-M (HO-2,6-dimethylaniline isomer 1).
• Xylazine-M (HO-2,6-dimethylaniline isomer 2).
• Xylazine M (oxo-).
• Xylazine-M (HO-) isomer 1.
• Xylazine-M (HO-) isomer 1 glucuronide.
• Xylazine-M (HO-) isomer 2.
• Xylazine-M (HO-) isomer 2 glucuronide.
• Xylazine-M (HO-oxo-) isomer 1.
• Xylazine-M (HO-oxo-) isomer 1 glucuronide.
• Xylazine-M (HO-oxo-) isomer 2.
• Xylazine-M (HO-oxo-) isomer 2 glucuronide.
• Xylazine-M (sulfone).
• Xylazine-M (sulfone-HO-) isomer 1.
• Any compound, mixture, or preparation which contains any quantity of any of these substances.

This bill provides exemptions from Schedule III scheduling for the substances listed above under the following circumstances:

• Dispensing or prescribing for, or administration to, a nonhuman species of a drug containing xylazine that has been approved by the Secretary of Health and Human Services under Section 360b of Title 21 of the United States Code.
• Dispensing or prescribing for, or administration to, a nonhuman species that is permissible under Section 360b(a)(4) of Title 21 of the United States Code.
• The manufacturing, distribution, or use of xylazine as an active pharmaceutical ingredient for manufacturing an animal drug pursuant to Section 360b of Title 21 of the United States Code.
• The manufacturing, distribution or use of a xylazine bulk chemical for pharmaceutical compounding by licensed pharmacists at 503b pharmacies or by veterinarians in the event that xylazine as an active pharmaceutical ingredient manufactured under Section 360b of Title 21 of the United States Code becomes unavailable.
• Any other use approved or permissible under the Federal Food, Drug, and Cosmetic Act.

This bill provides that its provisions do not take effect until xylazine is placed on Schedule III of the federal Controlled Substances Act.

COMMENTS

1. Need For This Bill

According to the author:

Xylazine is being mixed with other drugs sold on the streets, most notably fentanyl, under the street name ‘tranq’. Since xylazine is not an opioid, the standard overdose treatments like naloxone or Narcan can be less effective or even fail. California lacks policy to fully track xylazine’s growing role in our opioid crisis, much less mitigate its dangers. AB 3029 will reclassify xylazine as a Schedule III controlled substance while protecting its legitimate uses in veterinary medicine… This bill is an important step toward containing a rising threat before it becomes a bigger problem.

1. Controlled Substance Schedules

Through the Controlled Substances Act of 1970, the federal government regulates the manufacture, distribution, and dispensing of controlled substances. The Act groups drugs into five schedules with decreasing potential for physical or psychological harm, based on three considerations: accepted medical use; potential for abuse; and, safety or dependency liability. California’s controlled substances schedules largely follow the federal schedules.

• Schedule I controlled substances, such as heroin, ecstasy, and LSD, have a high potential for abuse and no generally accepted medical use.
• Schedule II controlled substances have a currently accepted medical use, with significant risk to patient safety, and have a high potential for abuse and dependence. Schedule II drugs can be narcotics or non-narcotic. Examples of Schedule II controlled substances include morphine, oxycodone, codeine, and amphetamine.
• Schedule III controlled substances have a currently accepted medical use, potential for abuse leading to moderate physical dependence. Examples of Schedule III controlled substances include ketamine and anabolic steroids.
• Schedule IV controlled substances have a currently accepted medical use, low potential for abuse which may lead to limited physical dependence. Examples of Schedule IV controlled substances include drugs include benzodiazepines.
• Schedule V controlled substances have a low potential for abuse or dependence. Examples of Schedule V controlled substances include buprenorphine and narcotic drugs containing non-narcotic active medicinal ingredients.

1. Xylazine

Xylazine, also known as tranq, is a non-opiate sedative, analgesic, and muscle relaxant only authorized in the U.S. for veterinary use by the FDA. (U.S. Department of Justice and Drug Enforcement Administration, DEA Joint Intelligence Report: The Growing Threat of Xylazine and its Mixture with Illicit Drugs (Oct. 2022), p. 1 available at <https://www.dea.gov/sites/default/files/2022-12/The%20Growing%20Threat%20of%20Xylazine%20and%20its%20Mixture%20with%20Illicit%20Drugs.pdf> [hereinafter DEA Joint Report].) It is not included in the federal controlled substances schedules, and it is not approved for consumption by humans. (Ibid.) In legal sales for veterinary use, xylazine is available in liquid form and sold in vials or preloaded syringes, with solutions prepared at a concentration appropriate for administration by injection based on the general size and weight of the species. (Ibid.) Xylazine is legitimately sold directly through pharmaceutical distributors and websites catering to veterinarians. (Ibid.)

Xylazine can be injected, sniffed, or consumed orally. (Centers for Disease Control and Prevention, What You Should Know About Xylazine available at <https://www.cdc.gov/drugoverdose/deaths/other-drugs/xylazine/faq.html#:~:text=References-,What%20is%20xylazine%3F,approved%20for%20use%20in%20in%20people.>.) People are most frequently exposed to xylazine while using illegal drugs, such as cocaine, heroin, and fentanyl, which are sometimes mixed with xylazine to enhance the effects of the drug it is being mixed with or to increase the price of the drug by increasing its weight. (Id.) The DEA reports that it has seized xylazine and fentanyl mixtures in almost all 50 states. (Id.) Between 2020 and 2021, DEA lab results found a 112% increase in the presence of xylazine in drug seizures in the Western region of the country. (DEA Joint Report, supra at p. 2.) Xylazine can cause respiratory depression similar to that of an opioid overdose which may increase the potential for a fatal outcome at a time when opioid overdose deaths remain high. (Id. at p. 4.) Due to the impact of xylazine on the opioid crisis, the White House designated fentanyl combined with xylazine as an emerging threat to the United States last year. (The White House, Office of the Press Secretary (Apr. 12, 2023) Biden-Harris Administration designates fentanyl combined with xylazine as an emerging threat to the United States, available at <https://www.whitehouse.gov/ondcp/briefing-room/2023/04/12/biden-harris-administration--designates-fentanyl-combined-with-xylazine-as-an-emerging-threat-to-the-united-states/>.)

1. Effect of This Bill

This bill adds xylazine and its derivatives to Schedule III of the state Uniform Controlled Substances Act but includes specified exemptions, primarily for veterinary use. The scheduling of xylazine and its derivatives is contingent upon xylazine receiving the same designation under the federal Controlled Substances Act.

This bill also adds xylazine and “other emerging adulterants as determined by the State Department of Public Health” to the provision of law that excludes testing equipment designed, marketed, intended to be used, or used, to test a substance for the presence of specified substances from the definition of “drug paraphernalia.”

1. Argument in Support

The Peace Officers Research Association of California writes:

AB 3029 would add xylazine to Schedule III of the act, except in certain circumstances relating to veterinary use, only after xylazine is placed on Schedule III of the federal Controlled Substances Act. The bill would also exclude from the prohibitions on paraphernalia any testing equipment to analyze a substance for the presence of xylazine and other emerging adulterants as determined by the State Department of Public Health.

1. Argument in Opposition

According to the ACLU California Action:

… The state’s current reliance on criminalization of drug abuse does not work and adding new drugs, such as xylazine, to the list will do nothing to resolve the problems.

On any given day, at least 137,000 men and women are behind bars for drug possession across the United States. Tens of thousands more are convicted, cycle through jails and prisons, and spend extended periods on probation and parole, often burdened with crippling debt from court-imposed fines and fees. AB 3029 would contribute to these severe disparities and likely exacerbate racial disparities that exist today. … Because drug enforcement is aimed at behavior which is inherently difficult to detect and does not involve a complaining “victim,” it necessarily relies on law enforcement techniques … that are arbitrary by nature and raise serious civil liberties concerns.

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ASSEMBLY THIRD READING

ATR Bill Id:AB 3029

Author:(Bains)

As Amended Ver:May 16, 2024

Majority vote

SUMMARY

Criminalizes xylazine, also known as "tranq," by making it a Schedule III drug under California's Uniform Controlled Substances Act (UCSA).

Major Provisions

1. Makes xylazine a Schedule III controlled substance under the USCA.
2. Provides that xylazine is not treated as a Schedule III controlled substance in the following circumstances:
   1. Dispensing or prescribing for, or administration to, a nonhuman species of a drug containing xylazine that has been approved, as specified;
   2. Dispensing or prescribing for, or administration to, a nonhuman species, as specified;
   3. The manufacturing, distribution, or use of xylazine as an active pharmaceutical ingredient for manufacturing an animal drug, as specified;
   4. The manufacturing, distribution or use of a xylazine bulk chemical for pharmaceutical compounding by licensed pharmacists, as specified, or by veterinarians in the event that xylazine as an active pharmaceutical ingredient manufactured as specified become unavailable; or,
   5. Any other use approved or permissible under the Federal Food, Drug, and Cosmetic Act.

COMMENTS

1. Xylazine: According to CDPH, xylazine (also known as "tranq") is a non-opioid animal tranquilizer that has been connected to an increasing number of overdose deaths nationwide. Some people who use drugs intentionally take fentanyl or other drug mixed with xylazine; in other circumstances, drug sellers cut fentanyl or heroin with xylazine to extend product’s effect without disclosing the adulterant. (https://www.cdph.ca.gov/Programs/CCDPHP/sapb/Pages/Xylazine.aspx)

The extent to which xylazine has proliferated in California drug markets is unclear. In 2022, the Drug Enforcement Administration (DEA) reported that its identification of xylazine-positive overdose deaths in the western United States increased by 750% in recent years, from four such deaths in 2020 to 34 in 2021. (https://www.dea.gov/sites/default/files/2022-12/The Growing Threat of Xylazine and its Mixture with Illicit Drugs.pdf) However, the DEA also noted comprehensive data on xylazine-related deaths is not available because xylazine is not routinely included in postmortem testing or data reporting in all jurisdictions. (Ibid.) In April 2023, based in part on the DEA's report, the White House Office of National Drug Control Policy designated fentanyl mixed with xylazine as an emerging threat, recognizing its "growing role in overdose deaths in every region in the United States." (https://www.whitehouse.gov/ondcp/briefing-room/2023/04/12/biden-harris-administration-designates-fentanyl-combined-with-xylazine-as-an-emerging-threat-to-the-united-states/ - :~:text=Xylazine%20is%20a%20non%2Dopioid,region%20of%20the%20United%20States.) On the other hand, in November 2023 in a letter to California health care facilities, CDPH described xylazine as "present" in California, but noted that the drug had not penetrated the state's drug supply as extensively as it has in other regions. (https://www.cdph.ca.gov/Programs/CCDPHP/sapb/Pages/Xylazine.aspx)

1. The California Uniform Controlled Substances Act: In 1970, Congress passed the Comprehensive Drug Abuse Prevention and Control Act, which established a framework for federal regulation of controlled substances. Title II of the act is the Controlled Substances Act (CSA), which placed controlled substances in one of five "schedules."

The schedule on which a controlled substance is placed determines the level of restriction imposed on its production, distribution, and possession, as well as the penalties applicable to any improper handling of the substance… [W]hen DEA places substances under control by regulation, the agency assigns each controlled substance to a schedule based on its medical utility and its potential for abuse and dependence.

(The Controlled Substances ACT (CSA): A Legal Overview for the 118^th Congress, Congressional Research Service (Jan. 19, 2023) p. 2 <https://crsreports.congress.gov/product/pdf/r/r45948> [last visited Mar. 28, 2024].)

Substances are added to or removed from schedules through agency action or by legislation. (Id. at p. 9.)

State laws generally follow the federal scheduling decisions, and "they are relatively uniform across jurisdictions because almost all states have adopted a version of a model statute called the Uniform Controlled Substances Act (UCSA)." (Id. at 4.) California adopted the UCSA in 1972. (Statutes of 1972, chapter 1407, Section 3.)

Congress has not yet acted to place xylazine on a schedule under the Controlled Substances Act. There are currently two bills pending in Congress that would make xylazine a Schedule III substance. (H.R. No. 1839, 118th Cong., 1st Sess. (2023) & Sen. No. 993, 118th Cong., 1st Sess. (2023).) However, neither bill has received a vote in its respective house, and whether Congress will act to schedule xylazine remains uncertain. (Cf. Solender, Capitol Hill stunner: 2023 led to fewest laws in decades, Axios.com (Dec. 18, 2023) <https://www.axios.com/2023/12/19/118-congress-bills-least-unproductive-chart> [last visited Mar. 28, 2024] [only 20 bills passed both chambers of Congress and were signed into law by the President in 2023].)

Depending on the outcome of those measures, this bill could place schedule xylazine under the UCSA ahead of a decision by the federal government. California, of course, may more tightly regulating controlled substances than the federal government. (The Controlled Substances ACT (CSA), supra, at p. 5.) However, California generally has aligned its Uniform Controlled Substances Act with the federal government's scheduling decisions. (See People v. Ward (2008) 167 Cal.App.4th 252, 259 ["In the California Uniform Controlled Substances Act, California adopted the five schedules of controlled substances used in federal law and in the Uniform Controlled Substances Act"]; Williamson v. Bd. Of Medical Quality Assurance (1990) 271 Cal.App.3d 1343, 1352, fn. 1. ["Effective January 1, 1985, Schedules I through V of the California Uniform Controlled Substances Act were revised so as to generally parallel the five schedules contained in the Federal Controlled Substances Act."].)

According to the Author

"Xylazine is being mixed with other drugs sold on the streets, most notably fentanyl, under the street name 'tranq'. Since xylazine is not an opioid, the standard overdose treatments like naloxone or Narcan can be less effective or even fail. California lacks policy to fully track xylazine's growing role in our opioid crisis, much less mitigate its dangers. AB 3029 will reclassify xylazine as a Schedule III controlled substance while protecting its legitimate uses in veterinary medicine, and require coroners and medical examiners to test for xylazine, fentanyl and other drugs in suspected overdose deaths. This bill is an important step toward containing a rising threat before it becomes a bigger problem."

Arguments in Support

According to the California Veterinary Medical Association, "AB 3029 makes aggressive moves to protect the public from xylazine diversion and abuse while balancing the need for veterinarians to maintain access to this important drug for use primarily in livestock, equine, and wildlife species.

"Xylazine is commonly used in veterinary medicine to provide sedation and pain control to livestock and horses. Its use and availability are of paramount importance to animal safety, human safety (such as veterinarians who have to perform procedures on animals that outweigh us by 10-fold), and public safety for animal control officers who use it to subdue wild and loose animals under the direction of a veterinarian. It is also used in zoological medicine to help care for exotic species. It easily ranks among one of the top 10 most important medications in livestock, equine and wildlife veterinary medicine.

"While AB 3029 will add xylazine to California's list of controlled substances as a schedule III drug, it does so by also incorporating language to help ensure that veterinarians will be able to maintain vital access to xylazine for use in legitimate veterinary practices and procedures that benefit our animal patients."

Arguments in Opposition

None Submitted.

FISCAL COMMENTS

According to the Assembly Appropriations Committee:

1) Costs (Trial Court Trust Fund, General Fund) to the courts of an unknown but potentially significant amount to adjudicate criminal charges related to xylazine. Incidence of xylazine use in California is not well known and the number of future cases is unknown. Actual costs will depend on the number of cases filed and the amount of time needed to adjudicate each case. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund. The Governor's 2024-25 budget proposes $83.1 million ongoing from the General Fund to backfill declining revenue to the Trial Court Trust Fund.

2) Costs (local funds, General Fund) to the counties of an unknown but significant amount to incarcerate people for crimes related to xylazine. The average annual cost to incarcerate one person in county jail is approximately $29,000. Actual incarceration costs will depend on the number of convictions and the length of each sentence. Although county incarceration costs are generally not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding resulting from 2011 public safety realignment.

VOTES

ASM PUBLIC SAFETY: 8-0-0

YES: McCarty, Alanis, Lackey, Stephanie Nguyen, Reyes, Ting, Wilson, Zbur

ASM BUSINESS AND PROFESSIONS: 17-0-1

YES: Berman, Flora, Alanis, Bains, Juan Carrillo, Chen, Dixon, Aguiar-Curry, Irwin, Jackson, Lowenthal, McKinnor, Stephanie Nguyen, Pellerin, Sanchez, Soria, Zbur

ABS, ABST OR NV: Low

ASM APPROPRIATIONS: 11-0-4

YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

ABS, ABST OR NV: Sanchez, Dixon, Jim Patterson, Ta

UPDATED

VERSION: May 16, 2024

CONSULTANT: Andrew Ironside / PUB. S. / (916) 319-3744 FN: 0003267

Date of Hearing: May 1, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 3029

Author:(Bains) – As Amended Ver:April 11, 2024

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill adds xylazine as a Schedule III drug under California’s Uniform Controlled Substances Act (UCSA), contingent on a similar change to federal law, and requires a coroner to conduct a toxicology test for specified substances if the coroner suspects the manner of death to be drug overdose and report the results to the California Department of Public Health (CDPH).

FISCAL EFFECT:

1. Likely reimbursable costs (local funds, General Fund) of an unknown but significant amount to counties for coroners to conduct toxicology tests as required by the bill. Actual costs will depend on the number of tests performed, the cost of each test, and staff time needed for testing and reporting the test results to CDPH. As discussed below, by broadly requiring coroners to conduct toxicology tests, this bill will likely result in state reimbursement for many tests that coroners currently conduct in their normal course of business. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.
2. Costs (Trial Court Trust Fund, General Fund) to the courts of an unknown but potentially significant amount to adjudicate criminal charges related to xylazine. A defendant charged with a misdemeanor or felony is entitled to no-cost legal representation and a jury trial. It generally costs approximately $1,000 to operate a courtroom for one hour. As discussed below, incidence of xylazine use in California is not well known. Actual costs will depend on the number of cases filed and the amount of time needed to adjudicate each case. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund. The Governor’s 2024-25 budget proposes $83.1 million ongoing from the General Fund to backfill declining revenue to the Trial Court Trust Fund.
3. Costs (local funds, General Fund) to the counties of an unknown but significant amount to incarcerate people for crimes related to xylazine. The average annual cost to incarcerate one person in county jail is approximately $29,000. Actual incarceration costs will depend on the number of convictions and the length of each sentence. Although county incarceration costs are generally not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding resulting from 2011 public safety realignment.

According to the Legislative Analyst’s Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years. 

COMMENTS:

1. Purpose. According to the author:

Xylazine is being mixed with other drugs sold on the streets, most notably fentanyl, under the street name ‘tranq’. Since xylazine is not an opioid, the standard overdose treatments like naloxone or Narcan can be less effective or even fail. California lacks policy to fully track xylazine’s growing role in our opioid crisis, much less mitigate its dangers…This bill is an important step toward containing a rising threat before it becomes a bigger problem.

1. Background. UCSA. Through independent statutory schemes, the federal government and California restrict the use of certain drugs and substances. Both schemes classify a controlled substance into one of five “schedules” based on a number of factors, including the substance’s risk for abuse or dependence and whether it has currently accepted medical uses. Schedule I substances pose the greatest risk and are most highly regulated; substances in each subsequent tier pose a lesser risk in comparison. For example, in California, heroin, cocaine, and LSD are Schedule I drugs, while codeine and buprenorphine are Schedule V drugs.

This bill places xylazine on Schedule III of the UCSA, but specifies that this provision does not take effect until the federal government places xylazine on the federal controlled substances schedule. California is not required to but has generally aligned its regulation of controlled substances with the federal schedules.

By classifying xylazine as a Schedule III substance, this bill also criminalizes a host of activities related to the substance. Possession, possession for sale, trafficking, manufacturing, and offering to manufacture a non-narcotic Schedule III substance are all criminal offenses. Punishments for these offenses range from one to seven years in county jail, plus significant fines in some cases.

Xylazine. According to CDPH, xylazine (also known as “tranq”) is a non-opioid animal tranquilizer that has been connected to an increasing number of overdose deaths nationwide. Some users intentionally take xylazine simultaneously with fentanyl or other drugs; in other circumstances, drug sellers cut fentanyl or heroin with xylazine to extend their product without disclosing the adulterant.

The extent to which xylazine has proliferated in California drug markets is unclear. In 2022, the Drug Enforcement Administration (DEA) reported that its identification of xylazine-positive overdose deaths in the western United States increased by 750% in recent years, from four such deaths in 2020 to 34 in 2021. However, the DEA also noted comprehensive data on xylazine-related deaths is not available because xylazine is not routinely included in postmortem testing or data reporting in all jurisdictions. In April 2023, based in part on the DEA’s report, the White House Office of National Drug Control Policy designated fentanyl mixed with xylazine as an emerging threat, recognizing its “growing role in overdose deaths in every region in the United States.” On the other hand, in November 2023 in a letter to California health care facilities, CDPH described xylazine as “present” in California, but noted that the drug had not penetrated the state’s drug supply as extensively as it has in other regions.

This bill requires a coroner to conduct a toxicology test if needed to determine or confirm the cause of death of a person. If the coroner suspects a person’s death was caused by a drug overdose, the toxicology test must screen for fentanyl, ketamine, and xylazine, among other specified substances. Coroners already routinely conduct toxicology tests in the course of their duties; by mandating them to do so, this bill may require significant General Fund reimbursement for those activities.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: April 23, 2024

ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS

Marc Berman, Chair

ABPCA Bill Id:AB 3029

Author:(Bains) – As Amended Ver:April 11, 2024

NOTE: This bill is double referred and previously passed the Assembly Committee on Public Safety with a vote of 8-0-0.

SUBJECT: Controlled substances.

SUMMARY: Adds xylazine and its derivatives to Schedule III of California’s Uniform Controlled Substances Act (UCSA), contingent upon it receiving the same designation under the federal Controlled Substances Act (CSA); requires a coroner or medical examiner to, under certain circumstances, conduct a toxicology analysis when confirming the manner of death, and if suspected to be due to drug overdose, requires a test for the presence of specified substances including xylazine, fentanyl, and ketamine.

EXISTING LAW:

1. Provides for the regulation of veterinary medicine under the Veterinary Medicine Practice Act and prohibits the practice unlicensed of veterinary medicine. (Business and Professions Code (BPC) §§ 4800-4917)
2. Establishes the Veterinary Medical Board (VMB) within the Department of Consumer Affairs (DCA) to license and regulate the veterinary medicine profession. (BPC § 4800)
3. Makes it unlawful to practice veterinary medicine in California unless the individual holds a valid, unexpired, and unrevoked license issued by the VMB. (BPC § 4825)
4. Provides that a person practices veterinary medicine when they, among other things, administer a drug or medicine for the prevention, cure, or relief of a wound, fracture, bodily injury, or disease of animals. (BPC § 4826(c))
5. Prohibits a controlled substance, or xylazine, from being ordered, prescribed or administered unless the veterinarian has performed and in-person physical examination of the animal patient or made appropriate and timely visits to the premises where the animal patient is kept. (BPC § 2826.6(i)(5))
6. Authorizes a drug, including a controlled substance, to be administered by a registered veterinary technician or a veterinary assistant under specified conditions. (BPC § 4836.1)
7. Mandates that a veterinary assistant must obtain a valid veterinary assistant controlled substance permit furnished by the VMB. (BPC § 4836.1(b)(1)
8. Requires coroners to determine the manner, circumstances, and cause of death in the following circumstances:
   1. Violent, sudden, or unusual deaths;
      
   2. Unattended deaths;
      
   3. Known or suspected homicide, suicide, or accidental poisoning;
      
   4. Drowning, fire, hanging, gunshot, stabbing, cutting, exposure, starvation, acute alcoholism, drug addiction, strangulation, aspiration, or sudden infant death syndrome;
      
   5. Deaths in whole or in part occasioned by criminal means;
      
   6. Deaths known or suspected as due to contagious disease and constituting a public hazard;
      
   7. Deaths from occupational diseases or occupational hazards;
      
   8. Deaths where a reasonable ground exists to suspect the death was caused by the criminal act of another; and,
      
   9. Deaths reported for inquiry by physicians and other persons having knowledge of the death.

(Government Code (GOV) § 27491)

1. Grants the coroner discretion to determine the extent of the inquiry required to determine the manner, circumstances and cause of death, and permits a coroner to authorize a physician to sign the certificate of death if that physician has sufficient knowledge to reasonably state the cause of a death occurred under natural circumstances. (GOV § 27491(b))
2. Requires the California Department of Public Health (CDPH) to establish an Internet-based electronic death registration system for the creation, storage, and transfer of death registration information. (Health & Safety Code (HSC) § 102778)
3. Establishes the Uniform Controlled Substances Act in California, which divides controlled substances into five schedules ranging with the most serious and heavily controlled substances, classified as Schedule I, to the least serious and most lightly controlled substances, classified as Schedule V. (HSC §§ 11053 – 11058)
4. Authorizes specified healing arts professionals licensed under the DCA to prescribe, furnish, or administer controlled substances to a patient when the patient is suffering from a disease, ailment, injury, or infirmities attendant upon old age, other than addiction to a controlled substance, and only in the quantity and for the length of time as are reasonably necessary. (HSC § 11210)
5. Authorizes persons who, under applicable federal laws or regulations, are lawfully entitled to use controlled substances for the purpose of research, instruction, or analysis, to obtain and use specified controlled substances upon registration with and approval by the California Department of Justice (DOJ). (HSC § 11212)
6. Prohibits a veterinarian from prescribing, administering, or furnishing a controlled substance for themselves or any other human being. (HSC § 11240)
7. Mandates that a prescription written by a veterinarian shall state the kind of animal for which it is ordered, and the name and address of the owner or person having custody of the animal. (HSC § 11241)
8. Clarifies that no prescription is required in the case of the sale of controlled substances at retail pharmacies by pharmacists to any of the following:
   1. Physicians;
   2. Dentists;
   3. Podiatrists;
   4. Veterinarians;
   5. Pharmacists, under specified conditions, or;
   6. Optometrists.

(HSC § 11250(a))

1. Clarifies that no prescription is required in the case of sales at wholesale of controlled substances by pharmacies, jobbers, wholesalers, and manufacturers to any of the following:
   1. Pharmacies;
   2. Physicians;
   3. Dentists;
   4. Podiatrists;
   5. Veterinarians;
   6. Other jobbers, wholesalers or manufacturers;
   7. Pharmacists, under specified conditions, or;
   8. Optometrists.

(HSC § 11251)

1. Makes possession of a non-narcotic Schedule III controlled substance a misdemeanor subject to imprisonment in county jail for up to one year, and a felony in cases where the person has one or more prior convictions for an offense classified as a violent felony or one that requires registration as a sex offender. (HSC § 11377(a))
2. Makes possession for sale of a non-narcotic Schedule III substance a felony subject to imprisonment in county jail for 16 months, 2 years or 3 years. (HSC § 11378)
3. Makes trafficking of a non-narcotic Schedule III substance a felony subject to imprisonment in county jail for 2, 3, or 4 years. (HSC § 11379)
4. Makes manufacturing, producing, or preparing a non-narcotic Schedule III controlled substance either directly or indirectly by chemical extraction or independently by means of chemical synthesis a felony punishable by imprisonment in county jail for 3, 5, or 7 years and a fine of up to $50,000. (HSC § 11379.6(a))
5. Makes offering to manufacturing, producing, or preparing a non-narcotic Schedule III controlled substance either directly or indirectly by chemical extraction or independently by means of chemical synthesis a felony punishable by imprisonment in county jail for 3, 4, or 5 years. (HSC § 11379.6(e))

THIS BILL:

1. Requires a coroner or medical examiner, or their deputy, to conduct a toxicology analysis or drug screening if it is required to determine or confirm the cause of death, as specified.
2. Requires a coroner or medical examiner to conduct a toxicology analysis or drug screening to test for the presence of fentanyl, fentanyl analog, ketamine, gamma hydroxybutyric acid, xylazine, or other emerging adulterants as determined by the CDPH.
3. Requires a toxicology analysis or drug screening to be reported to the CDPH.
4. Makes xylazine and its derivatives a Schedule III controlled substance under California’s UCSA, contingent upon the federal government making xylazine a Schedule III substance under the federal CSA.
5. Provides that xylazine is not treated as a Schedule III controlled substance under the following circumstances:
   1. Dispensing, prescribing, or administering a drug containing xylazine to a nonhuman species, as specified;
   2. Dispensing, prescribing, or administering xylazine to a nonhuman species, as specified;
   3. The manufacturing, distribution, or use of xylazine as an active pharmaceutical ingredient for manufacturing an animal drug, as specified;
   4. The manufacturing, distribution or use of a xylazine bulk chemical for pharmaceutical compounding by licensed pharmacists, as specified, or by veterinarians in the event that xylazine as an active pharmaceutical ingredient, as specified, becomes unavailable.
   5. Any other use approved or permissible under the Federal Food, Drug, and Cosmetic Act.

FISCAL EFFECT: Unknown; this bill is keyed fiscal by the Legislative Counsel.

COMMENTS:

Purpose. This bill is author-sponsored. According to the author:

“Xylazine is being mixed with other drugs sold on the streets, most notably fentanyl, under the street name ‘tranq’. Since xylazine is not an opioid, the standard overdose treatments like naloxone or Narcan can be less effective or even fail. California lacks policy to fully track xylazine’s growing role in our opioid crisis, much less mitigate its dangers. AB 3029 will reclassify xylazine as a Schedule III controlled substance while protecting its legitimate uses in veterinary medicine, and require coroners and medical examiners to test for xylazine, fentanyl and other drugs in suspected overdose deaths. This bill is an important step toward containing a rising threat before it becomes a bigger problem.”

Background.

Overview of the Opioid Crisis. Opioids are a class of drugs prescribed and administered by health professionals to manage pain. The term “opioid” is commonly used to describe both naturally occurring opiates derived from the opium poppy as well as their manufactured synthetics. Common examples of prescription opioids include oxycodone (OxyContin, Percocet); hydrocodone (Vicodin, Norco, Lorcet); codeine; and morphine. Heroin is also an opioid, but is ineligible for lawful prescription in the United States.

In addition to providing pain relief, opioids can be used as a cough suppressant, an antidiarrheal, a method of sedation, and a treatment for shortness of breath. The majority of pharmaceutical opioids are Schedule II drugs under the federal Controlled Substances Act, considered by the federal Drug Enforcement Administration (DEA) to have a high potential for abuse that may lead to severe psychological or physical dependence. However, combination drugs containing lower doses of opioids combined with other active ingredients are typically less restricted; for example, cough syrups containing low doses of codeine are frequently classified Schedule V medications.

In October of 2017, the White House declared the opioid crisis a national public health emergency, formally recognizing what had long been understood to be a growing epidemic responsible for devastation in communities across the country, a declaration that was most recently renewed in March of this year. According to the Centers for Disease Control and Prevention (CDC), as many as 50,000 Americans died of an opioid overdose in 2016, representing a 28 percent increase over the previous year. The CDPH estimated that nearly 2,000 Californians died of an opioid overdose in 2016.

The nature of the country’s opioid crisis has evolved over the past several years as illicitly manufactured fentanyl has replaced prescribed pain management medication as the dominant source of opioid-related overdoses. Fentanyl is a synthetic opioid that is up to 100 times stronger than morphine. Fentanyl is often pressed into pills to imitate more common (and less potent) pharmaceutical products, and other drugs can be unknowingly “laced” with fentanyl. Over 70,000 Americans died of a fentanyl overdose in 2021, including 5,961 deaths in California – approximately 83% of all opioid-related deaths in California. In response to this growing epidemic, Governor Newsom released a “Master Plan for Tackling the Fentanyl and Opioid Crisis” in 2023, that among other things, dedicated significant funding toward fentanyl prevention and detection, recovery programming, and stronger enforcement measures.

Federal vs. State Controlled Substances Scheduling. The federal Controlled Substances Act classifies a number of drugs and chemicals into one of five schedules. Drugs falling within Schedules II through V may be prescribed only by health practitioners in possession of a federal Drug Enforcement Agency (DEA) registration and are ranked according to the drug’s potential for abuse, with lower numbered schedules representing drugs with a higher risk of abuse or dependence. Schedule III drugs, substances, or chemicals are those defined as having a moderate potential for physical and psychological dependence, but that have some form of federally-recognized medical value. According to the DEA, examples of other Schedule III substances include Tylenol with codeine, ketamine, anabolic steroids, and testosterone.

California also has its own schedule of controlled substances under the Uniform Controlled Substances Act. While the federal and state schedules are typically aligned in regards to how medications are classified, there have been conflicts between the federal and state acts, typically when the federal government reschedules a substance or exempts a specific drug from the Controlled Substances Act. When this occurs, statute in California typically must be legislatively amended to reconcile the differences.

Professionals of the healing arts that are licensed by various medical boards under the DCA are permitted to administer, prescribe, and dispense controlled substances under varying degrees of control, and subject to rigorous tracking and reporting requirements. Specific to veterinary medicine, licensed veterinarians are permitted to order, prescribe, and administer controlled substances, or xylazine, so long as they perform an in-person examination of the patient and confirm such a substance is medically necessary. In addition, registered veterinary technicians permitted by the Veterinary Medical Board (VMB), and veterinary assistants that possess a valid controlled substances permit issued by the VMB, may obtain and administer a controlled substance to a patient. Importantly, law expressly prohibits veterinarians from ordering, prescribing or furnishing a controlled substance to themselves or any human.

Xylazine in Veterinary Medicine. Xylazine is a drug approved by the federal Food and Drug Administration for veterinary use for a wide array of purposes, such as sedation, anesthesia, and pain relief for many animal species, particularly livestock and horses. Specifically, xylazine binds and blocks catecholamine receptors that would otherwise spike adrenaline and trigger a “fight or flight” response in the body. When administered to an animal, xylazine serves as a strong and reliable sedative for veterinarians. Examples of xylazine’s uses in the field include keeping a horse or bovine animal calm during the cleaning or suture of a wound, or providing relief in an emergency situation such as a musculoskeletal injury in a horse. It is also a common zoological medicine in care for exotic species. It can be administered on its own, or in conjunction with butorphanol—a schedule IV controlled opioid—to strengthen the sedative effect for certain animal patients. Additionally, xylazine can be administered in conjunction with ketamine or telazol—both schedule III substances—to induce anesthesia.

Veterinarians note that xylazine is not only an important drug for the health of the animal patient, but is critical to the safety of the veterinarian and assisting staff as well. Xylazine is mostly used in equine, bovine, and exotic animal patients, a category which poses risk to the doctor if the patient becomes agitated or uncontrollable. For example, xylazine is used by equine veterinarians as part of administering arthritic care to prevent the horse from kicking the veterinarian.

The veterinary community has largely been supportive of efforts to address illicit xylazine usage and better regulate it as a controlled substance. In March of 2023, the American Veterinary Medical Association (AVMA) joined as a key supporter of the Combating Illicit Xylazine Act currently under consideration in Congress, which, similar to this bill, would categorize xylazine as a Schedule III controlled substance under the federal CSA, while ensuring exemptions for legitimate veterinary uses.

Xylazine as a “street drug”. In recent years, xylazine has seen a sharp increase in popularity in the illicit drug market. Sometimes referred to as “Tranq” in illicit drug circles, xylazine is typically mixed with other narcotics and drugs such as fentanyl, cocaine, and heroin. Effects of xylazine on humans includes difficulty breathing, dangerously low blood pressure, extremely slowed heart rate, and an increase in abscesses and ulceration of the skin that can become necrotic. Research from the DEA demonstrates wide variance in toxicity among humans, with fatal dosages ranging from trace amounts to as high as 16,000 nanograms-per-milliliter^[1]. Critically, naloxone—the common antidote to reverse opioid overdoses, also known under the popular brand name Narcan—has no effect on xylazine, and there is currently now known antipode for xylazine that is safe for humans.

According to data from CDC, the rate of xylazine overdose deaths in 2021 was 35 times higher than the rate found in 2018, with increased usage demonstrated across all age, sex, and race demographics. Additional CDC research indicates that, among 21 jurisdictions, the monthly percentage of illicitly manufactured fentanyl (IMF) involved deaths in which xylazine was also detected increased 276% between January 2019 and June 2022. DEA laboratory results show a sharp increase in xylazine detected in the illicit drug market across all four U.S. census regions, with instances in the West increasing 112% between 2020 and 2021. Demonstrably, there is a quickly growing epidemic related to xylazine abuse in the illicit drug market.

In April of 2023, the Biden-Harris Administration designated fentanyl combined with xylazine as an emerging threat to the United States, convening an interagency working group to develop a national response plan to the growing threat xylazine poses to public health. This response plan, released in July 2023, focused on six “pillars of action”: (1) testing, (2) data collection, (3) evidence-based prevention, harm reduction, and treatment, (4) supply reduction, (5) scheduling, and (6) research. The response plan called for the federal government to “progress toward decisions on possible regulatory actions under [the CSA], including scheduling of xylazine while simultaneously maintaining the legitimate supply of xylazine in veterinary medicine, and prioritizing facilitation of access to xylazine for research purposes.”. In parallel, the 118^th Congress is currently considering legislation that would add xylazine to Schedule III of the federal CSA, with similar exemptions contained in this bill for legitimate veterinary use. Further, the press release announcing the response plan called on local law enforcement and elected officials across the country to “coordinate with their public health colleagues in order to enhance the efficacy of their efforts to reduce and disrupt the illicit supply chain and go after traffickers.”

In response, several states across the nation have taken action to combat the spread of illicit xylazine abuse. According to research compiled by the National Governors Association, most states have engaged in a communication and public awareness plans to inform the public of the increasing threat of xylazine, and many are considering legislation or other rulemaking actions to strengthen state regulations concerning xylazine. Ohio and Pennsylvania have taken executive action to classify xylazine as a Schedule III controlled substance under their respective laws, while West Virginia passed state legislation placing it on Schedule IV, and Florida has existing state law establishing xylazine as Schedule I substance.

In November of 2023, Governor Newsom issued a press release calling on legislation to prevent illegal xylazine use and distribution, building upon his “Master Plan for Tackling the Fentanyl and Opioid Crisis” released earlier that same year. In response to the growing risk illicit xylazine poses to public health, and the urge for California to proactively respond to the crisis, the author has put forward this bill to better regulate, track, and ideally reduce xylazine use in the state.

Current Related Legislation.

SB 1502 (Ashby & Berman) would add xylazine to Schedule III of the state’s Uniform Controlled Substances Act. This bill is pending in the Senate Appropriations Committee.

AB 2136 (Jones-Sawyer) would exclude equipment, products, and materials that are designed for use or marketed for use in testing or analyzing a controlled substance from the definition of “drug paraphernalia” under the Uniform Controlled Substances Act. This bill is pending in the Assembly Public Safety Committee.

Prior Related Legislation.

AB 1399 (Friedman), Chapter 475, Statutes of 2023 expanded the authority of a licensed veterinarian to establish a veterinarian-client-patient relationship and practice veterinary medicine through the use of telehealth.

AB 1885 (Kalra), Chapter 389, Statutes of 2022 authorized a veterinarian to recommend the use of cannabis on an animal for potential therapeutic effect or health supplementation purposes.

AB 2215 (Kalra), Chapter 819, Statutes of 2018, among other things, prohibited the VMB from disciplining, or denying, revoking, or suspending the license of, a licensed veterinarian solely for discussing the use of cannabis on an animal for medicinal purposes, absent negligence or incompetence.

AB 2589 (Bigelow), Chapter 81, Statutes of 2018 exempted human chorionic gonadotropin (hCG) from the regulations associated with Schedule III controlled substances when possessed, sold to, purchased by, transferred to, or administered by a licensed veterinarian, or a licensed veterinarian’s designated agent, exclusively for veterinary use.

ARGUMENTS IN SUPPORT:

This bill is supported by the California Veterinary Medical Association (CVMA). According to CVMA: “While AB 3029 will add xylazine to California’s list of controlled substances as a schedule III drug, it does so by also incorporating language to help ensure that veterinarians will be able to maintain vital access to xylazine for use in legitimate veterinary practices and procedures that benefit our animal patients… The CVMA is grateful to Dr. Bains and her staff for being sensitive to the needs of the veterinary profession and for being receptive to suggestions in bill language that will balance public protection with appropriate provisions for veterinary access in regard to xylazine.”

REGISTERED SUPPORT:

California Veterinary Medical Association

Peace Officers Research Association of California (PORAC)

REGISTERED OPPOSITION:

None on file.

Analysis Prepared by: Edward Franco / B. & P. / (916) 319-3301, Robert Sumner / B. & P. / (916) 319-3301

1. Drug Enforcement Administration (DEA), Diversion Control Division; Xylazine Report; November 2022 ↑

Date of Hearing: April 2, 2024

Counsel: Andrew Ironside

ASSEMBLY COMMITTEE ON

Kevin McCarty, Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Criminalizes xylazine, also known as “tranq,” by making it a Schedule III drug under California’s Uniform Controlled Substances Act (UCSA). Specifically, this bill:

1. Requires a coroner or medical examiner to conduct a toxicology analysis or drug screening if needed to determine or confirm the cause and manner of death, as specified.
   
2. Requires a coroner or medical examiner, when suspecting a death is due to a drug overdose, to conduct a toxicology analysis or drug screening to test for presence fentanyl or an analog of fentanyl, ketamine, gamma hydroxybutyric acid, xylazine, or other emergency adulterants as determined by the State Department of Public Health (DPH).
   
3. Makes xylazine a Schedule III controlled substance under the USCA.
   
4. Provides that xylazine is not treated as a Schedule III controlled substance in the following circumstances:
   
   1. Dispensing or prescribing for, or administration to, a nonhuman species of a drug containing xylazine that has been approved, as specified;
      
   2. Dispensing or prescribing for, or administration to, a nonhuman species, as specified;
      
   3. The manufacturing, distribution, or use of xylazine as an active pharmaceutical ingredient for manufacturing an animal drug, as specified;
      
   4. The manufacturing, distribution or use of a xylazine bulk chemical for pharmaceutical compounding by licensed pharmacists, as specified, or by veterinarians in the event that xylazine as an active pharmaceutical ingredient manufactured as specified become unavailable; or,
      
   5. Any other use approved or permissible under the Federal Food, Drug, and Cosmetic Act.

EXISTING LAW:

1. Lists controlled substances in five “schedules” - intended to list drugs in decreasing order of harm and increasing medical utility or safety - and provides penalties for possession of and commerce in controlled substances.  Schedule I includes the most serious and heavily controlled substances, with Schedule V being the least serious and most lightly controlled substances. (Health & Saf. Code, §§ 11054-11058.)
   
2. Makes possession of a non-narcotic Schedule III controlled substance a misdemeanor subject to imprisonment in county jail for up to one year. (Health & Saf., § 11377, subd. (a).)
   
3. Makes possession of a non-narcotic Schedule III controlled substance a felony subject to 16 months, 2 years, or 3 years in county jail where the person has one or more prior convictions for an offense classified as a violent felony or one that requires registration as a sex offender. (Health & Saf., § 11377, subd. (a).)
   
4. Makes possession for sale of a non-narcotic Schedule III substance a felony subject to imprisonment in county jail for 16 months, 2 years or 3 years. (Health & Saf., § 11378.)
   
5. Makes trafficking of a non-narcotic Schedule III substance a felony subject to imprisonment in county jail for 2, 3, or 4 years. (Health & Saf., § 11379.)
   
6. Makes manufacturing, producing, or preparing a non-narcotic Schedule III controlled substance either directly or indirectly by chemical extraction or independently by means of chemical synthesis a felony punishable by imprisonment in county jail for 3, 5, or 7 years and a fine of up to $50,000. (Health & Saf., § 11379.6, subd. (a).)
   
7. Makes offering to manufacturing, producing, or preparing a non-narcotic Schedule III controlled substance either directly or indirectly by chemical extraction or independently by means of chemical synthesis a felony punishable by imprisonment in county jail for 3, 4, or 5 years. (Health & Saf., § 11379.6, subd. (e).)
   
8. Requires coroners to determine the manner, circumstances, and cause of death in the following circumstances:
   
   1. Violent, sudden, or unusual deaths;
      
   2. Unattended deaths;
      
   3. Known or suspected homicide, suicide, or accidental poisoning;
      
   4. Drowning, fire, hanging, gunshot, stabbing, cutting, exposure, starvation, acute alcoholism, drug addiction, strangulation, aspiration, or sudden infant death syndrome;
      
   5. Deaths in whole or in part occasioned by criminal means;
      
   6. Deaths known or suspected as due to contagious disease and constituting a public hazard;
      
   7. Deaths from occupational diseases or occupational hazards;
      
   8. Deaths where a reasonable ground exists to suspect the death was caused by the criminal act of another; and,
      
   9. Deaths reported for inquiry by physicians and other persons having knowledge of the death. (Gov. Code, § 27491.)
      
9. Requires the coroner to sign the certificate of death if they perform a mandatory inquiry. (Gov. Code, § 27491, subd. (a).)
   
10. Gives the coroner discretion when determining the extent of the inquiry required to determine the manner, circumstances and cause of death. (Gov. Code, § 27491, subd. (b).)
    
11. States that the content of a death certificate must include, among other things, personal data of the decedent, date of death, place of death, disease or conditions leading directly to death and antecedent causes, accident and injury information, and information regarding pregnancy. (Health & Saf. Code, § 102875.)
    
12. Requires a physician and surgeon, physician assistant, funeral director, or other person to notify the coroner when they have knowledge that a death occurred, or if they have charge of a body in which death occurred under any of the following, among others:
    
    1. Without medical attendance;
       
    2. During continued absence of attending physician and surgeon;
       
    3. Where attending physician and surgeon, or physician assistant is unable to state cause of death; and,
       
    4. Reasonable suspicion to suspect death was caused by criminal act. (Health & Saf. Code, § 102850.)
       
13. Requires the California Department of Public Health (DPH) to establish an Internet-based electronic death registration system for the creation, storage, and transfer of death registration information. (Health & Saf. Code, § 102778.)
    
14. Requires DPH to track data on pregnancy-related deaths and publish such data at least once every three years, as specified. (Health & Saf. Code, § 123630.4.)
    

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “Xylazine is being mixed with other drugs sold on the streets, most notably fentanyl, under the street name ‘tranq’. Since xylazine is not an opioid, the standard overdose treatments like naloxone or Narcan can be less effective or even fail. California lacks policy to fully track xylazine’s growing role in our opioid crisis, much less mitigate its dangers. AB 3029 will reclassify xylazine as a Schedule III controlled substance while protecting its legitimate uses in veterinary medicine, and require coroners and medical examiners to test for xylazine, fentanyl and other drugs in suspected overdose deaths. This bill is an important step toward containing a rising threat before it becomes a bigger problem.”
   
2. Xylazine: According to CDPH, xylazine (also known as “tranq”) is a non-opioid animal tranquilizer that has been connected to an increasing number of overdose deaths nationwide. Some people who use drugs intentionally take fentanyl or other drug mixed with xylazine; in other circumstances, drug sellers cut fentanyl or heroin with xylazine to extend product’s effect without disclosing the adulterant. (https://www.cdph.ca.gov/Programs/CCDPHP/sapb/Pages/Xylazine.aspx)
   
   The extent to which xylazine has proliferated in California drug markets is unclear. In 2022, the Drug Enforcement Administration (DEA) reported that its identification of xylazine-positive overdose deaths in the western United States increased by 750% in recent years, from four such deaths in 2020 to 34 in 2021. (https://www.dea.gov/sites/default/files/2022-12/The Growing Threat of Xylazine and its Mixture with Illicit Drugs.pdf) However, the DEA also noted comprehensive data on xylazine-related deaths is not available because xylazine is not routinely included in postmortem testing or data reporting in all jurisdictions. (Ibid.) In April 2023, based in part on the DEA’s report, the White House Office of National Drug Control Policy designated fentanyl mixed with xylazine as an emerging threat, recognizing its “growing role in overdose deaths in every region in the United States.” (https://www.whitehouse.gov/ondcp/briefing-room/2023/04/12/biden-harris-administration-designates-fentanyl-combined-with-xylazine-as-an-emerging-threat-to-the-united-states/ - :~:text=Xylazine%20is%20a%20non%2Dopioid,region%20of%20the%20United%20States.) On the other hand, in November 2023 in a letter to California health care facilities, CDPH described xylazine as “present” in California, but noted that the drug had not penetrated the state’s drug supply as extensively as it has in other regions. (https://www.cdph.ca.gov/Programs/CCDPHP/sapb/Pages/Xylazine.aspx)
   
3. The California Uniform Controlled Substances Act: In 1970, Congress passed the Comprehensive Drug Abuse Prevention and Control Act, which established a framework for federal regulation of controlled substances. Title II of the act is the Controlled Substances Act (CSA), which placed controlled substances in one of five “schedules.”
   

The schedule on which a controlled substance is placed determines the level of restriction imposed on its production, distribution, and possession, as well as the penalties applicable to any improper handling of the substance… [W]hen DEA places substances under control by regulation, the agency assigns each controlled substance to a schedule based on its medical utility and its potential for abuse and dependence.

(The Controlled Substances ACT (CSA): A Legal Overview for the 118^th Congress, Congressional Research Service (Jan. 19, 2023) p. 2 <https://crsreports.congress.gov/product/pdf/r/r45948> [last visited Mar. 28, 2024].)

Substances are added to or removed from schedules through agency action or by legislation. (Id. at p. 9.)

State laws generally follow the federal scheduling decisions, and “they are relatively uniform across jurisdictions because almost all states have adopted a version of a model statute called the Uniform Controlled Substances Act (UCSA).” (Id. at 4.) California adopted the UCSA in 1972. (Stats. 1972, ch. 1407, § 3.)

Congress has not yet acted to place xylazine on a schedule under the Controlled Substances Act. There are currently two bills pending in Congress that would make xylazine a Schedule III substance. (H.R. No. 1839, 118th Cong., 1st Sess. (2023) & Sen. No. 993, 118th Cong., 1st Sess. (2023).) However, neither bill has received a vote in its respective house, and whether Congress will act to schedule xylazine remains uncertain. (Cf. Solender, Capitol Hill stunner: 2023 led to fewest laws in decades, Axios.com (Dec. 18, 2023) <https://www.axios.com/2023/12/19/118-congress-bills-least-unproductive-chart> [last visited Mar. 28, 2024] [only 20 bills passed both chambers of Congress and were signed into law by the President in 2023].)

Depending on the outcome of those measures, this bill could place schedule xylazine under the UCSA ahead of a decision by the federal government. California, of course, may more tightly regulating controlled substances than the federal government. (The Controlled Substances ACT (CSA), supra, at p. 5.) However, California generally has aligned its Uniform Controlled Substances Act with the federal government’s scheduling decisions. (See People v. Ward (2008) 167 Cal.App.4th 252, 259 [“In the California Uniform Controlled Substances Act, California adopted the five schedules of controlled substances used in federal law and in the Uniform Controlled Substances Act”]; Williamson v. Bd. Of Medical Quality Assurance (1990) 271 Cal.App.3d 1343, 1352, fn. 1. [“Effective January 1, 1985, Schedules I through V of the California Uniform Controlled Substances Act were revised so as to generally parallel the five schedules contained in the Federal Controlled Substances Act.”].)

1. Reporting Drug Overdoses: California’s Overdose Prevention Initiative (OPI) collects and shares data on fatal and non-fatal drug related overdoses, overdose risk factors, prescriptions, and substance use. (<https://www.cdph.ca.gov/Programs/CCDPHP/sapb/Pages/OPI-landing.aspx> [as of February 20, 2024].) The OPI works with local and state partners to address the complex and evolving nature of the drug overdose epidemic by data collection and analysis, prevention programs, public awareness and education campaigns, and safe prescribing and treatment practices. (DPH Drug Overdose Response Partner Recommendations, <https://www.cdph.ca.gov/Programs/CCDPHP/sapb/Pages/Drug-Overdose-Response.aspx> [as of Feb. 20, 2024].) One of the five recommendations it makes to local and statewide partners is to improve rapid identification of drug overdose outbreaks by partnering with coroner and medical examiner offices, healthcare facilities, and emergency medical services to obtain overdose data to form a timely response. (Ibid.)
   
   To the extent it is not already being done, this bill would require coroners or medical examiners to conduct a toxicology analysis or drug screening if needed to determine or confirm the cause and manner of death; and, if suspecting a death to be due to drug overdose, to test for presence fentanyl or an analog of fentanyl, ketamine, gamma hydroxybutyric acid, xylazine, or other emergency adulterants as determined by DPH.
   
2. Argument in Support: According to the California Veterinary Medical Association, “AB 3029 makes aggressive moves to protect the public from xylazine diversion and abuse while balancing the need for veterinarians to maintain access to this important drug for use primarily in livestock, equine, and wildlife species.
   
   “Xylazine is commonly used in veterinary medicine to provide sedation and pain control to livestock and horses. Its use and availability are of paramount importance to animal safety, human safety (such as veterinarians who have to perform procedures on animals that outweigh us by 10-fold), and public safety for animal control officers who use it to subdue wild and loose animals under the direction of a veterinarian. It is also used in zoological medicine to help care for exotic species. It easily ranks among one of the top 10 most important medications in livestock, equine and wildlife veterinary medicine.
   
   “While AB 3029 will add xylazine to California’s list of controlled substances as a schedule III drug, it does so by also incorporating language to help ensure that veterinarians will be able to maintain vital access to xylazine for use in legitimate veterinary practices and procedures that benefit our animal patients.”
   
3. Related Legislation:
   
   1. AB 1859 (Alanis), would require coroners to report to the State Department of Public Health (DPH) and to the Overdose Detection Mapping Application Program (ODMAP) whether an autopsy revealed the presence of xylazine at the time of a person’s death. AB 1859 is currently pending in the Assembly Appropriations Committee.
      
   2. AB 2018 (Rodriguez), would remove fenfluramine as a controlled substance under the UCSA. AB 2018 is pending a vote by the Assembly.
      
   3. AB 2871 (Maienschein), would authorize a county to establish an interagency overdose fatality review team to assist local agencies in identifying and reviewing overdose fatalities. AB 2871 is pending hearing in the Assembly Health Committee.
      
   4. AB 3073 (Haney), would, among other things, require the State Department of Public Health to develop protocols for implementing wastewater surveillance for high-risk substances, including xylazine. AB 3073 is pending hearing in the Assembly Committee on Environmental Safety and Toxic Materials.
      
   5. SB 1502 (Ashby) would make xylazine or any substance containing xylazine a Schedule III controlled substance under the UCSA. SB 1502 is pending referral in the Senate Rules Committee.
      
4. Prior Legislation:
   
   1. AB 1399 (Friedman), Chapter 475, Statutes of 2023, prohibited, among other things, a veterinarian from ordering, prescribing, or making available xylazine unless the veterinarian has performed an in-person physical examination of the animal patient or make medically appropriate and timely visits to the premises where the animal patient is kept.
      
   2. SB 67 (Seyarto), Chapter 859, Statutes of 2023, requires a coroner or medical examiner to report deaths that are a result of a drug overdose to the Overdose Detection Mapping Application Program managed by the Washington/Baltimore High Intensity Drug Trafficking Area program.
      
   3. AB 1351 (Haney), of the 2023-2024 Legislative Session, would have required all coroners or medical examiners to submit quarterly reports to the DPH on deaths caused by, or involving, overdoses of any drugs. AB 1351 was held by the Assembly Appropriations Committee.
      
   4. SB 1695 (Escutia), Chapter 678, Statutes of 2002, among other things, requires DPH to create a webpage on drug overdose trends in California, including death rates, in order to ascertain changes in the cause or rate of fatal and nonfatal drug overdoses.
      

REGISTERED SUPPORT / OPPOSITION:

Support

California Veterinary Medical Association
Peace Officers Research Association of California (PORAC)

Opposition

None

Analysis Prepared by: