Following government announcements and headlines in the media that Nitrous Oxide has been banned as a Class C drug in November 2023, there understandably remains a lot of confusion around the legal status of Nitrous Oxide in the UK. Is Nitrous Oxide illegal in the UK? Is possession of Nitrous Oxide a criminal offence? Can Cream Chargers and nitrous oxide tanks such Mr Whip Infusions, Smartwhip and Fastgas legally be sold/purchased? We’ll unpack and answer all these questions for you.
What is the Problem with Nitrous Oxide?
Let’s start by looking at the issue which the government felt it needed to address.
The misuse of Nitrous Oxide as the ‘party drug’ laughing gas has grown in popularity in the UK in the past few decades. According to the Office for National Statistics (ONS), the use of Nitrous Oxide as laughing gas peaked at 9% among 16-24 year olds in 2016-2017. Interestingly, its use appears to have been falling quite sharply in recent years, with the ONS reporting that its use had fallen to 3.9% by 2021-2022. Nevertheless, the misuse of N2O continues to be a concern, with data showing it to have been the 3rd most-used drug in England & Wales in the period from 2018-2020.
What are the Risks Involved with Laughing Gas?
There’s no doubt that the misuse of Nitrous Oxide carries serious health risks, including death. Nitrous Oxide (also referred to as; balloons, chargers, hippie crack, laughing gas, nos, noz and whippits), used as ‘laughing gas’ can cause numerous risks. The heavy or regular misuse of Nitrous Oxide can lead to a deficiency of Vitamin B12 and to a form of anemia. Vitamin B12 deficiency can lead to nerve damage, potentially leading to paralysis. Returning to data from the ONS, they reported that between 2001 and 2020, there were 56 registered deaths in England & Wales involving Nitrous Oxide, with 45 of these occurring since 2010.
The police have reported links to anti-social behaviour, with ‘intimidating gatherings’ on high streets and parks, and empty canisters of Nitrous Oxide found strewn across public spaces. As a result, the changes to the law on Nitrous Oxide were announced as part of the government’s ‘antisocial behaviour action plan’
Some Recent History
Back in 2016, the government attempted to tackle the problem of ‘legal highs’, including ‘laughing gas’, being openly sold in the UK. That year, they introduced the Psychoactive Substances Act which made it a criminal offence to supply a psychoactive substance to another person, if you were aware, or were reckless as to whether the substance was likely to be consumed for its psychoactive effect. The government made it clear that Nitrous Oxide was covered by the Act. The sale of Nitrous Oxide for misuse as laughing gas has therefore been illegal in the UK since 2016, carrying a maximum sentence of 7 years in prison.
The Psychoactive Substances Act proved to be relatively successful at tackling some of the issues intended, with many ‘legal high’ stores known as ‘head shops’ closing across the country. In relation to supply and misuse of Nitrous Oxide, however, the Act failed to achieve its goals. The widespread misuse of Nitrous Oxide has continued.
Autumn 2023: Nitrous Oxide to be Banned as a Class C drug
Having failed to tackle the problem of the misuse of Nitrous Oxide in 2016, the government announced their new plan in spring 2023. As of 8 November 2023, Nitrous Oxide is a Class C drug under the Misuse of Drugs Act 1971. Nitrous Oxide has a vast number of legitimate legal uses however, (not least as food additive E942 as a propellant to whip cream, the creation of culinary espuma/foams and the rapid infusion of liquids, such as alcoholic and non-alcoholic beverages, vinegars and oils), a broad exemption from the new law has been created to ensure that those using Nitrous Oxide for legitimate purposes are not criminalised.
So let’s take a closer look at the law and see exactly what has, and hasn’t changed.
What Does the Law Say About the Sale/Supply of Nitrous Oxide?
We’ll begin by looking at the law in relation to the sale/supply of Nitrous Oxide.
As of 8 November 2023, it is a criminal offence for a person to supply or offer to supply Nitrous Oxide. This is by way of S.4(1)(b) of the Misuse of Drugs Act 1971.
However, Regulation 4C (3) of the Misuse of Drugs Regulations 2001 provides a broad exemption to this, it states: “any person may –
- (a) supply, including by way of administration, nitrous oxide, except where the person knows, or is reckless as to whether, it is likely to be wrongfully inhaled by a person; or
- (b) offer to supply nitrous oxide, except where the person knows, or is reckless as to whether, if the substance were supplied in accordance with the offer, it would be likely to be wrongfully inhaled by any person.”
In essence, the law related to the supply of Nitrous Oxide is the same as it has been since 2016. Everyone is exempt from the ban on supplying Nitrous Oxide under the Misuse of Drugs Act unless they know, or are reckless as to whether it will be misused. As we saw above, since 2016 it has been a criminal offence under the Psychoactive Substance Act to supply Nitrous Oxide to another person if you were aware, or were reckless as to whether, it was likely to be consumed for its psychoactive effects. The only change is that the maximum penalty for falling foul of the law has increased from 7 to 14 years in prison.
So, there is no real change to the law regulating the supply of Nitrous Oxide.
Let’s turn to the law governing its importation. There are no UK manufacturers of food-grade Nitrous Oxide cylinders, so this is an area of huge importance. All those empty cylinders of Nitrous Oxide seen scattered across the country have been imported into the UK.
What Does the Law Say About the Importation of Nitrous Oxide?
As of 8 November 2023, the importation of Nitrous Oxide is prohibited. This is by way of S.3 (1) of the Misuse of Drugs Act 1971. As with supply, however, the Misuse of Drugs Regulations provides a broad exemption to this. Again, everyone is exempt from the ban, except an importer who: “intends to wrongfully inhale it; or knows, or is reckless as to whether it is likely to be wrongfully inhaled”.
This is effectively the same law introduced by the Psychoactive Substances Act in 2016 under which it is a criminal offence to import Nitrous Oxide if; you intended to consume it for its psychoactive effect; or you knew, or were reckless as to whether it was likely to be consumed for it’s psychoactive effect.
Again, no change to the law in this area. It could be argued that by not tightening the law on importation, the government has missed the opportunity to reduce the volume of Nitrous Oxide imported for misuse.
What Does the Law Say About the Possession of Nitrous Oxide?
Let’s complete our look at the law by turning to the one area where there is a notable change. As of 8 November 2023, possession of Nitrous Oxide is unlawful under S.5 of the Misuse of Drugs Act. But again, there is a broad exemption to this. The Misuse of Drugs Regulations state that “any person may possess nitrous oxide except where the person—
- (a) intends to wrongfully inhale it; or
- (b) intends to supply it to another person for its wrongful inhalation.”
For the first time, possession of Nitrous Oxide is now a criminal offence, but only if the person intends to misuse it, or supply another person for its misuse. Everyone using Nitrous Oxide for legitimate purposes has nothing to fear. They are protected by the exemption under Regulation 4C (4) of the Misuse of Drugs Regulations.
Conclusion
Despite the hard-hitting headlines and bold announcements by the government that they’ve banned Nitrous Oxide, the reality is that there’s been no meaningful change to the law that will tackle the availability of Nitrous Oxide which is sold for misuse. The only real change is that possession of Nitrous Oxide is now an offence, if and only if, the person intends to wrongfully inhale it; or intends to supply it to another person for such purpose.
If you’ve skipped to the conclusion, the answer to the questions posed at the onset of this article is straightforward..
Question: Is it now illegal to sell Nitrous Oxide in the UK?
Answer: It is only illegal to sell Nitrous Oxide in the UK if the person knows, or is reckless as to whether it is likely to be wrongfully inhaled. Otherwise, the sale of Nitrous Oxide is legal.
Question: Is possession of Nitrous Oxide a criminal offence in the UK?
Answer: Possession of Nitrous Oxide is only illegal if the person intends to wrongfully inhale it, or supply it to another person for such. In all other cases, possession of Nitrous Oxide is not a criminal offence.
Question: Can Cream Chargers and tanks such as Mr Whip Infusions, Smartwhip and Fastgas legally be sold/purchased?
Answer: The new provisions introduced on 8 November 2023 make no distinction between cream chargers and larger cylinders such as Mr Whip Infusions, Smartwhip and Fastgas. Therefore the only consideration is if the use intended is legitimate (see the answers to the first 2 questions above).
