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Justice Department: FDA ‘Lacks Jurisdiction’ Over Drugs for Death Penalty

The legal opinion came in response to a lawsuit filed by Texas arguing against the FDA having a say over states’ law enforcement duties.

The Justice Department waded into the debate over lethal injection drugs on Tuesday by arguing that the Food and Drug Administration “lacks jurisdiction” to evaluate drugs used for the death penalty.

A legal opinion put out by the department's Office of Legal Counsel states that “articles intended for use in capital punishment by a state or the federal government cannot be regulated as ‘drugs’ or ‘devices.’”

The announcement, which could pave the way for lethal injection drugs to face fewer restrictions, came in response to a lawsuit filed by Texas against the FDA in 2017 after the agency blocked state authorities from importing sodium thiopental, an anesthetic used in executions, from an overseas distributor. Texas accused the FDA at the time of hindering the state’s law enforcement duties.