WASHINGTON – On Wednesday, U.S. Sen. Ron Johnson delivered remarks on the Senate floor about the Stopping Overdoses of Fentanyl Analogues (SOFA) Act. This legislation would give law enforcement enhanced tools to combat the opioid epidemic by allowing the Drug Enforcement Administration (DEA) to class schedule fentanyl related substances as Schedule 1 under the Controlled Substance Act. Sen. Ron Johnson previously introduced SOFA in 2017, 2019 and 2021.

In 2018, the DEA enacted SOFA through a two-year temporary scheduling order. Congress has extended the order six times, and President Biden has signed five of those extensions into law. DEA Administrator Anne Milgram has described the permanent scheduling of fentanyl related substances as “critical to the health and safety of our communities” and a “vital tool to combat overdose deaths in the United States.” 

While the SOFA regulation was in effect for one year, law enforcement across the country experienced a 90% decrease in encounters with fentanyl related substances. Unfortunately, the current extension is set to expire at the end of 2022, during the largest border crisis in our nation’s history.

Following Sen. Johnson’s remarks, Sen. Dick Durbin (D-Ill.) incorrectly argued that researching fentanyl-related substances would be impossible under SOFA. In fact, there is a framework in place to conduct research on Schedule 1 drugs with DEA approval. Since the SOFA regulation was enacted in 2018, the DEA has approved all 28 applications for research on fentanyl related substances.

Sen. Johnson asked his colleagues in the Senate to pass SOFA by unanimous consent to reduce the number of fentanyl overdose deaths.

Sen. Johnson’s full remarks on the Senate floor can be found here and highlights are below.

On the Background of the SOFA Act

“Mr. President, I rise today to tell a story of one family's tragedy, but also of two wonderful people who turned that tragedy into helping others and finding solutions. On May 15, 2014, a 19 year old Wisconsinite named Archie Badura died of a fentanyl overdose. Two years later, I met his mother, Lauri Badura who testified before a field hearing I held in Pewaukee, Wisconsin, together with the emergency room doctor named Dr. Tim Westlake. He testified about the growing problem that he was seeing in his emergency room with overdoses and in particular, overdoses with, I think, a drug that we all heard was somewhat new- fentanyl, a schedule two drug, one used in medicine, but one that had been altered. 

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“The reason I called it the SOFA Act, and that stands for stopping overdoses of fentanyl analogs, because Laurie Badura, who lost her 19 year old son, turned her tragedy into helping others. She was the go to person for other families who also lost a loved one through overdoses, and she started an organization called Saving Others for Archie. The acronym was SOFA.”

On the Importance of the SOFA Act

“So on July 13, 2017, I introduced SOFA for the first time here in the United States Senate. On November 9, 2017, because of Tim Westlake and Lauri Badura’s tireless effort, a state piece of legislation, the SOFA equivalent, was signed into law in Wisconsin. And basically what this law does - it’s a pretty simple law - it just allows law enforcement, the DEA, to view these fentanyl-related substances as a class under Schedule One of the Controlled Substance Act.

“Prior to this bill, prior to these regulations, law enforcement had to view each new molecule, each new analog as a separate drug. And they could not arrest, they couldn't prosecute, they couldn't put people in jail for selling these and poisoning our cities. Dr. Tim Westlake recognized that problem. I recognize that problem. And so we introduced the SOFA Act, and once DEA saw it, they thought this is a pretty good idea, and they utilized their regulatory authority and passed a regulation on February 6, 2018. They issued a temporary scheduling order that placed, “certain fentanyl related substances in Schedule I for two years.” The text of that regulation was identical to the text of the SOFA Law that I had introduced earlier in 2017. Now, unfortunately, they could only issue that regulation, have it in effect for two years.”

On the Administrative and Congressional Support of the SOFA Act

“So as it was about ready to run out, Congress extended that regulation in an act of Congress, and we've extended it six times. President Biden has signed that extension five times. But the problem is the extension of that regulation runs out on December 31st of this year. Now, the Biden administration, I think it's important to understand that in its 2021 budget proposal, called for a class wide fentanyl scheduling.

“DEA administrator Anne Milgram said: “The permanent scheduling of all fentanyl-related substances is critical to the safety and health of our communities.” She added: “Class wide scheduling provides a vital tool to combat overdose deaths in the United States.” Now, why have we extended this regulation six times? There's no need to it, we could pass the law. Which we've tried to do a number of times, but the reason we keep extending it is because it's worked. It's helped stop the flow of these precursor chemicals coming out of China. China's actually cracked down on these analogs within China. So the regulation worked. The SOFA act is vital, according to Anne Milgram. 

“Something else I want to point out about the SOFA Act is in an almost unprecedented, this is very rare,  in 2018, all 50 states’ attorney generals, plus the attorney general from the District of Columbia, including current HHS Secretary Xavier Becerra, who was an attorney general for California at the time, signed a letter to congressional leadership urging the Congress act expeditiously and pass the SOFA Act.” 

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