§ 5-64-421 — Possession of fentanyl - Possession of fentanyl with the purpose to deliver - Delivery of fentanyl - Manufacture of fentanyl - Predatory marketing of fentanyl to minors

(a) (1) Except as provided by this chapter, it is unlawful for a person to possess fentanyl. (2) A person who violates subdivision (a)(1) of this section upon conviction is guilty of a Class C felony. (b) (1) Except as provided by this chapter, it is unlawful for a person to possess fentanyl with the purpose to deliver fentanyl. (2) Purpose to deliver may be shown by any of the following factors: (A) The person possesses the means to weigh, separate, or package fentanyl; (B) The person possesses a record indicating a drug-related transaction; (C) The fentanyl is separated or packaged in a manner to facilitate delivery; (D) The person possesses a firearm that is in the immediate physical control of the person at the time of the possession of fentanyl; (E) The person possesses at least two (2) other controlled substances in any amount; or (F) Other relevant and admissible evidence that contributes to the proof that a person's purpose was to deliver fentanyl. (3) A person who violates subdivision (b)(1) of this section upon conviction is guilty of a Class A felony. (c) (1) Except as provided by this chapter, it is unlawful for a person to deliver fentanyl. (2) A person who violates subdivision (c)(1) of this section upon conviction is guilty of a Class Y felony. (d) (1) Except as provided by this chapter, it is unlawful for a person to manufacture fentanyl. (2) A person who manufactures fentanyl upon conviction is guilty of a Class Y felony. (e) It is an affirmative defense to prosecution under subsection (a) of this section if a person has a valid prescription for fentanyl and is using the fentanyl lawfully. (f) It is not a violation under subsections (b) and (c) of this section if a permitted manufacturer, wholesaler, pharmacy, hospital, long-term care facility, or other medical provider delivers, prescribes, administers, or transfers fentanyl for lawful purposes and in compliance with state and federal law. (g) It is not a violation of subsection (d) of this section for a pharmaceutical company to manufacture fentanyl in compliance with state and federal law. (h) The unlawful possession of drug paraphernalia containing fentanyl residue shall not be charged under this section and may be charged under § 5-64-443 . (i) (1) (A) A person commits the offense of predatory marketing of fentanyl to minors if he or she possesses fentanyl with the purpose to deliver, delivers fentanyl, or manufactures fentanyl; and (B) The fentanyl possessed, delivered, or manufactured is likely to appeal to minors due to the shape, color, taste, or design of the fentanyl or the fentanyl's packaging, including without limitation: (i) Products that are modeled after noncontrolled substance products primarily consumed by and marketed to minors; (ii) Products in the shape of an animal, a vehicle, a person, or a character; or (iii) Products that resemble food or beverages that are attractive to minors and that are commonly sold in retail establishments regardless of whether the food or beverages are generic, trademarked, or branded products, including without limitation products that resemble candy. (2) A person who commits predatory marketing of fentanyl to minors upon conviction is guilty of an unclassified felony and shall be sentenced to a term of life imprisonment and a fine of one million dollars ($1,000,000).

Legislative History

Amended by Act 2023, No. 584,§ 4, eff. 4/11/2023. Added by Act 2021, No. 887,§ 4, eff. 7/28/2021.