Loophole in US customs law contributing to fentanyl deaths

Last year, more than 73,000 Americans died from an overdose of the synthetic opioid fentanyl. The drug itself is cheap and readily available, with thousands of pounds flowing into the United States from Mexico every month. In fact, fentanyl seizures at the U.S.-Mexico border increased 164 percent between 2020 and 2022 alone.

Even more disturbing is that Americans can now have high-potency fentanyl shipped straight to their front door. That’s because a loophole in U.S. customs law known as “de minimis” enables literally millions of small international mail packages to reach U.S. consumers each day. Included in this flood of shipments are fentanyl packages that completely bypass federal scrutiny.

The Department of Homeland Security (DHS) estimates that the fentanyl being shipped directly to U.S. homes is extremely potent — often with more than 90 percent purity. That’s far stronger than the average 10 percent concentration for fentanyl seized at the border.

U.S. Customs and Border Protection (CBP) acknowledges that the de minimis loophole is facilitating “shipments that may contain narcotics.” The agency says that bad actors are “seeking to exploit the increasing volumes of de minimis shipments to transit illicit goods, including fentanyl.”

Essentially, the de minimis loophole has made it possible for Americans to order fentanyl online and have it delivered safely through the U.S. mail. That’s far different from when the de minimis provision was first established almost 100 years ago. 

Back then, de minimis was simply intended to save customs officials the trouble of assessing tariffs on small items purchased overseas. But things have changed. 

In 1994, CBP implemented new regulations for de minimis entry that allowed any “consignee” to import merchandise into the United States. This ran contrary to U.S. law requiring importers to be knowledgeable about the merchandise they import. 

CBP’s rule change meant that mail carriers and express couriers would now serve as de facto importers — even if they had no knowledge of the merchandise they were delivering. This posed serious problems and the National Customs Brokers and Forwarders Association of America (NCBFAA) warned that the new policy would make it harder to enforce visa requirements, intellectual property rules, and FDA regulations.

As problematic as that was, things grew exponentially worse in 2016. Congress abruptly raised the de minimis “threshold” to $800. That meant any package valued at less than $800 could suddenly enter the U.S. without facing any taxes, fees, or inspection whatsoever.

Such a huge increase in the de minimis threshold was exactly what Amazon and other express shippers wanted. They could now import an endless flood of small packages — and completely bypass any customs bonds, manifest information, tariffs, and taxes. 

Since then, e-commerce sales have exploded. Roughly 3 million small packages now enter the United States each day — with most of them shipped straight to U.S. consumers. This has made the vetting of packages virtually impossible.

It shouldn’t be a surprise that fentanyl is arriving in these shipments. The majority of de minimis packages to the U.S. are essentially a mystery. Roughly 1 million of them contain absolutely no identifying data beyond a mailing label, a declared value, and a brief description of contents. Customs personnel can’t feasibly examine all of these labels. And even a cursory review can miss packages hiding fentanyl and other contraband.

Because of de minimis, express shippers and a handful of e-commerce platforms are now reaping vast financial gains. And Beijing has benefited, too, since the de minimis loophole added an estimated $188 billion to America’s trade deficit with China in 2022 alone.

De minimis represents an ungovernable break in America’s customs controls. Millions of packages are entering the United States each day with little or no scrutiny. Most arrive without digital data, and offer only a few words of description.

It’s past time to address such lawlessness. The de minimis loophole should be ended, either through executive action by the Biden administration or Congressional legislation. Either way, Washington must ensure that dangerous drugs can’t simply arrive in Americans’ mailboxes each day.

Michael Stumo is CEO of the Coalition for a Prosperous America (CPA). Follow him @michael_stumo