The government has made clear its intention to ban nitrous oxide, or ‘laughing gas’, in its use as a recreational drug. A statement says: “It is clear that nitrous oxide has a negative effect on individuals and communities. It is the third most commonly misused drug, with particularly concerning rates of use by school age children and younger adults. In their 2023 review, the Advisory Council on the Misuse of Drugs concluded that the overall harms were insufficient to merit control. However, there have been anecdotal reports of an increase in social harms such as drug driving and littering of discarded canisters, alongside widespread availability of nitrous oxide for illegitimate use and the risk of neurological harm it presents to users when consumed in extreme volumes.
“We know that some of these harms are felt acutely by communities, and as a result the Prime Minister announced in the government’s Anti-Social Behaviour Plan, published on 27 March, that we will be taking decisive action to ban nitrous oxide by making it a Class C drug under the Misuse of Drugs Act 1971.
“While we are clear that it is necessary to control nitrous oxide, the government nevertheless recognises that there are legitimate uses for nitrous oxide in the many sectors, including medical, industrial and catering. We intend to ensure that those wishing to use nitrous oxide for legitimate purposes can do so lawfully and without undue burdens.
This consultation seeks to understand the full range of legitimate uses of nitrous oxide and proposes three options for how to approach a regime of control. This will enable us to ensure that we minimise the burdens placed on those who seek to use and handle nitrous oxide for legitimate purposes.”
Widespread recreational use of the drug throughout the UK was featured in the 2017 Vice documentary Inside The Laughing Gas Black Market, in which journalist Matt Shea met with dealers of the drug who stole it from hospitals.
A significant issue cited in London’s press is the effect of canister littering, which is highly visible and causes significant complaints from communities.
While casual use is understood by most recreational users to be a route to a “safe high”, many are unaware that excessive consumption has the potential to cause neurological harm which, if left untreated, can result in permanent neurological damage. In Australia, recreational use became a public health concern following a rise in reported cases of neurotoxicity and a rise in emergency room admissions, and in the state of South Australia legislation was passed in 2020 to restrict canister sales.
The government has taken the decision to control nitrous oxide as a Class C drug under the Misuse of Drugs Act 1971 (“the 1971 Act”). Control under the 1971 Act means that it will be unlawful to possess, supply, import, export or produce the substance, unless an exemption applies (for example, for use in healthcare) or the person undertaking the activity holds an appropriate licence.
Nitrous oxide is a colourless gas, also known as ‘laughing gas’. It can be misused for its psychoactive effects by inhalation, which can cause brief euphoria, mild perceptual changes and uncontrollable laughter. Heavy nitrous oxide use can result in serious health harms such as neurological damage and there is wider harm felt by communities including the consequences of drug driving incidents and littering of the discarded canisters. In 2020/21, nitrous oxide was the third most commonly used drug among 16 to 59 year olds in England and Wales.
Nitrous oxide also has widespread legitimate and beneficial uses, including in medical, dental, and veterinary settings. It is also used as a fuel additive, a food additive and food extraction solvent and has other widespread uses in industrial processes. The government wishes to minimise the effect of controlling nitrous oxide on those who seek to use it for legitimate purposes, while restricting its availability to those who seek to misuse it.
This consultation will be used by the government to understand the full range and scale of legitimate uses of nitrous oxide to enable the design of a legal framework that permits its use for legitimate purposes once it becomes a Class ‘C’ controlled drug under the 1971 Act. For the purposes of this consultation, ‘legitimate use’ refers to uses of nitrous oxide which is not for its psychoactive effect in a recreational capacity.
The consultation sets out three proposed approaches to facilitate legitimate use, which are:
- Introduce a licensing requirement for the import, export, possession, production, or supply of nitrous oxide where this is for a legitimate purpose.
- Exempt from licensing requirements the import, export, possession, production, and supply of nitrous oxide where this is for legitimate purposes. This would mean no licensing requirements for legitimate purposes.
- Introduce licensing requirements for the import, export, production, and supply of nitrous oxide and provide an exemption for the possession of nitrous oxide where this is for a legitimate purpose.
- It is expected that a different approach may be required for medical, dentistry and veterinary use, in line with the existing scheduling approaches under the 2001 Regulations.
The government will take a final decision on the appropriate approach taking account of the consultation responses.
Any final legislation will be accompanied by an impact assessment setting out the full costs and benefits of the policy, which will take into account the responses received to the consultation.
Control of a drug under the 1971 Act makes it unlawful to possess, supply, produce, import or export the drug, unless a relevant exception or authorisation applies.
Under the 1971 Act if you are convicted of possessing a Class C drug you could face up to 2 years in prison, an unlimited fine or both. If you are convicted of supplying a Class C drug, you could face up to 14 years in prison, an unlimited fine or both.
The government is considering how best to balance enabling the legitimate use of nitrous oxide while ensuring that it is not misused for its psychoactive effect. It is not the intention to unduly burden legitimate users, nor to inadvertently criminalise those wishing to use nitrous oxide for legitimate purposes. The government is of the view that in order to effectively implement a sufficient level of control, a licensing regime may be required.
You can respond to the current consultation by completing the online survey at https://www.homeofficesurveys.homeoffice.gov.uk/s/EKNTX3/