Consultation outcome

Nitrous oxide: legitimate uses and appropriate controls

Updated 5 September 2023

Foreword

The government 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.

I am grateful to you for responding to this consultation. Your contributions will help to ensure that every effort is made to minimise the impact 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.

Rt Hon Chris Philp MP

Minister of State for Crime, Policing and Fire

Executive summary

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. This consultation invites views on which exemptions should apply.

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.

It does this by asking for your views on three proposed approaches. Some of these include establishing a requirement to obtain a licence for some actions and purposes. It also asks a series of questions to identify the full range and scale of legitimate uses for nitrous oxide, as well as the mechanisms and nitrous oxide products required for these purposes.

The consultation sets out three proposed approaches to facilitate legitimate use, which are:

1. Introduce a licensing requirement for the import, export, possession, production, or supply of nitrous oxide where this is for a legitimate purpose.
2. 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.
3. 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.

Introduction

This consultation will be used by the government to understand the range and scale of legitimate uses of nitrous oxide to enable the design of appropriate permissions in the law to allow its use for legitimate purposes once it is controlled under Class C of the 1971 Act.

The consultation is aimed at any organisation or person who uses, or wishes to use in the future, nitrous oxide for legitimate purposes such as, but not limited to motorsport, food production, medical settings, industrial settings, retail settings, research settings and catering in England, Wales and Scotland. However, this list is not meant to be exhaustive or exclusive and responses are welcomed from anyone with an interest in, or views on, the subject covered by this paper.

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.

A copy of the consultation paper is being sent to the British Compressed Gas Association.

Information may be shared with the Advisory Council on the Misuse of Drugs to help inform consideration of the appropriate scheduling of nitrous oxide under the Misuse of Drugs Regulations 2001.

The proposals

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. Further details about drug offences can be found here.

The government is considering how best to balance enabling the legitimate use of nitrous oxide while ensuring that nitrous oxide is not misused for its psychoactive effect. It is not our intention to unduly burden legitimate users, nor it is our intention 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. The following proposals are being considered:

Proposal 1 – Licensing for all legitimate purposes (outside healthcare)

Introduce a licensing requirement for all uses of nitrous oxide. In this scenario:

• a licence would be required for any company or individual who wished to import, export, possess, produce, or supply nitrous oxide for all purposes
• exemptions would apply for use in healthcare, as with other drugs

Proposal 2 – No requirements for licensing for legitimate purposes

Exempt the import, export, possession, production and supply of nitrous oxide from the offences under the 1971 Act where this is for legitimate purposes.

In this scenario:

• no licence would be required where nitrous oxide is used or handled for a legitimate purpose (as defined in the legislation)
• where a business or individual is importing, exporting, possessing, producing, or supplying nitrous oxide for a purpose not defined as legitimate, they will need to obtain a licence
• exemptions would apply for use in healthcare, as with other drugs.

Legitimate purposes will be defined in legislation, and the information gathered through this consultation will inform the scope and content of that definition.

Proposal 3 – Licensing for import/ export, production, supply and an exemption for possession 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.

In this scenario:

• a licence would be required for any company or individual who wished to import, export, produce, or supply nitrous oxide.
• an individual or organisation who wished to possess nitrous oxide for a legitimate purpose (as defined in the legislation) would not require a licence for this activity.
• exemptions would apply for use in healthcare, as with other drugs.

Contact details and how to respond

Complete the online survey at https://www.homeofficesurveys.homeoffice.gov.uk/s/EKNTX3/

Email: nitrousoxideconsultation@homeoffice.gov.uk

Complaints or comments

If you have any complaints or comments about the consultation process you should contact the Home Office at the above address.

Representative groups

Representative groups are asked to give a summary of the people and organisations they represent when they respond.

Confidentiality

Information provided in response to this consultation, including personal information, may be published or disclosed in accordance with the access to information regimes (these are primarily the Freedom of Information Act 2000 (FOIA), the Data Protection Act 2018 (DPA), the General Data Protection Regulation (GDPR) and the Environmental Information Regulations 2004).

If you want the information that you provide to be treated as confidential, please be aware that, under the FOIA, there is a statutory Code of Practice with which public authorities must comply and which deals, amongst other things, with obligations of confidence. In view of this it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the Home Office.

The Home Office will process your personal data in accordance with the DPA and in the majority of circumstances, this will mean that your personal data will not be disclosed to third parties.