Rudi Fortson K.C.

In June 2023, the UK Government took the decision to control nitrous oxide as a Class C drug under the Misuse of Drugs Act 1971.  It explained that doing so would mean “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” [Link]

Consequently, the Government sought the advice of the Advisory Council on the Misuse of Drugs (ACMD) on two aspects of the Misuse of Drugs Regulations 2001, namely:

• appropriate scheduling of nitrous oxide to enable use for medical, dental, veterinary, healthcare and some scientific purposes (“medical-related uses”) and
• how to enable legitimate non-medical related, lawful uses, including industrial uses.

The ACMD provided its advice to the Minister of State for Crime, Policing and Fire (the Rt Hon Chris Philp MP): letter 11^th August 2023 [Link].

The ACMD reached four striking conclusions:

1. “The ACMD is unable to conclude with certainty the breadth of nonmedical-related uses of nitrous oxide, or the potential unintended consequences of scheduling under the Misuse of Drugs Regulations 2001 for these uses.”
2. “The ACMD considers that a licensing regime for nitrous oxide would be disproportionate, complex and have an undesirable impact on legitimate uses.”
3. “If exemptions were to be applied to nitrous oxide, the ACMD considers that these should be based on type of use grouped into two categories: medical-related and non-medical-related.”
4. “None of the current schedules under the Misuse of Drugs Regulations 2001 are wholly appropriate for nitrous oxide. Schedule 5, with modifications, would offer the most suitable controls while enabling medical-related and non-medical-related uses with fewest burdens.”

The ACMD observed that “Due to the range of medical-related and non-medical-related uses of nitrous oxide, it would be unfeasible to amend the list of persons to include all legitimate uses without creating significant unintended consequences”. It also considered the health and social harms of nitrous oxide to be “lower than other drugs with legitimate uses which are enabled by the Misuse of Drugs Regulations 2001”.

With those considerations in mind, one might have anticipated the final recommendation of the ACMD to have been that the Government should change course and not include nitrous oxide as a “controlled drug” under the MDA 1971.

However, perhaps sensing that the Government was resolute in its decision, the ACMD made four recommendations of which two are particularly relevant:

Recommendation 1
i) Nitrous oxide be inserted into Schedule 5 of the Misuse of Drugs Regulations 2001.
ii) Schedule 5 of the Misuse of Drugs Regulations 2001 be amended specifically for nitrous oxide to enable all activities required for legitimate uses.
iii) Schedule 5 of the Misuse of Drugs Regulations 2001 be amended specifically for nitrous oxide to enable control of import and export, production, possession, and supply for non-legitimate uses.

Recommendation 2
That further consultation is needed with other Government departments and stakeholders to:
i) Agree a legally robust definition of legitimate use of nitrous oxide, ensuring coverage of legitimate non-medical-related uses.
ii) Determine any unintended implications or consequences of the proposed definition.

It is submitted that those recommendations should serve as further warnings to the Government about the correctness of its decision.

Given that the Government is principally targeting the handling of nitrous oxide for recreational use, it is conceivable that the substance will be placed into Schedule 5 of the Misuse of Drugs Regulations 2001 (the intensity of control being the lightest under the Act).  However:

1. The expressions “legitimate use” and “non-legitimate use” are not ones found in legislation (and certainly not in the MDA 1971 or its associated Regulations).
2. The Government may decide to permit the distribution and use of nitrous oxide in all situations except when the consumption of nitrous oxide (other than for a recognised medical purpose) is for producing a psychoactive effect in a person who consumes it – or something along those lines.
3. Nitrous oxide would be the first gas to be controlled under the MDA 1971. Past administrations seem to have decided against regulating volatile substances under the MDA 1971.
4. Parliament enacted the Intoxicating Substances (Supply) Act 1985 which made it an offence to supply or to offer to supply a substance – “other than a controlled drug” – to a person under the age of eighteen (or to their agent) if the supplier knew or had reasonable cause to believe (i) that the person was under that age and (ii) that the substance was (or its fumes) were likely to be inhaled by that person for the purpose of causing intoxication. The Act was superseded and repealed by the PSA 2016.
5. The moment that a psychoactive substance becomes an MDA “controlled drug”, the PSA 2016 will cease to apply to it.
6. Applying the current Government’s approach in relation to nitrous oxide, there is the potential for the MDA 1971 to be applied in respect of other substances of misuse such as butane gas, glues, or other volatile substances.

The Government may be hoping that by labelling nitrous oxide an MDA “controlled drug” it will have a deterrent effect.  Time will tell whether that hope is misplaced.