UK nitrous oxide ban comes into force

The possession of nitrous oxide has today (8th November) been made illegal if it is – or is likely to be – ‘wrongfully inhaled’ under an updated law which classifies the gas as a Class C drug under the Misuse of Drugs Act 1971.

According to the UK’s Home Office, those breaking the law could receive an unlimited fine, community punishment and/or a prison sentence for repeat serious offenders.

Under the previous law, it was illegal to produce, supply, import or export nitrous oxide for psychoactive purposes.

The new regulations mean that it will be a criminal offence to be found in possession of the drug where its intended use is to be wrongfully inhaled, ‘to get high’, said the UK Government in a statement.

‘Wrongful inhalation’ means inhalation other than for medical or dental purposes, and which is not accidental inhalation of nitrous which has been released into the atmosphere (such as in industrial processes).

Exceptions will apply to medical, dental and veterinary use of nitrous oxide, in addition to other activities such as use in industry or model rocketry.

From today, those found in unlawful possession will face either an unlimited fine, a visible community punishment or a caution – which would appear on their criminal record.

Repeat serious offenders may face a prison sentence of up to two years, an unlimited fine, or both.

The penalty for supply or production will double, to up to 14 years in prison, an unlimited fine, or both.

The change in law comes amidst increasing concerns about misuse of the drug and its impacts on health and the wider community.

Heavy use of the gas can result in neurological damage or death due to the risk of falling unconscious and suffocating from the lack of oxygen.

Other health harms include memory loss, vitamin B12 depletion, incontinence, weakened immune system, depression and psychosis.

In 2020/21, nitrous oxide was the third most used drug among 16- to 59-year olds in England and Wales, according to Part 8: Drug use prevalence and consumption – NHS Digital.

A report from the Office for National Statistics (ONS) suggested that this equates to around 230,000 young people who inhaled the substance in England and Wales in the year ending June 2022.

Nitrous oxide was the third most mentioned substance on the death certificate after butane and propane, with 56 deaths registered between 2001 and 2020, and 45 of those having been registered since 2010. (Source: ONS)

Having called on the UK Government to ban consumer sales of nitrous oxide, the British Compressed Gases Association (BCGA) welcomed the announcement.

“As an active campaigner for restrictions on consumer supply, BCGA welcomes the Home Office decision to take action, and the willingness of the teams there to listen to the concerns of our members,” said David Hurren, President of the BCGA.

“We believe the legislation is a step in the right direction and are encouraged that it has been framed to ensure essential legitimate business use is protected.”

Appropriate legislation?

Despite the calls for the drug to be banned, the Advisory Council on the Misuse of Drugs (ACMD) believes that the substance should not be controlled under the Misuse of Drugs Act.

Last year, the government requested a review of the gas and its legal status by the council, resulting in the release of a report which states that the existing Psychoactive Substances Act – which limits prison sentence to a maximum of seven years – ‘remains appropriate legislation’.

According to the ACMD, sanctions for the offences would be disproportionate with the level of harm associated with nitrous oxide.

This was echoed by addiction recovery support service Rehabs UK, which say the move will only serve to worsen the UK’s problems, with potential to undo years of progress.

Referencing ONS data, the organisation said that nitrous oxide use has already fallen ‘dramatically’ in the UK in recent years, with just 1.3% of 16-59 year olds using it as a drug in 2022, and 3.9% of 16-24 year olds – compared with 9% in 2017.

The government continues to fail to understand the root cause of the problem…

Meanwhile, use of Class A drugs – with the highest possible criminal sentences – has risen 81% among 16-25 year-olds since 2012.

“With data showing that harsher fines and sentences do not result in reduced rates of drug use and related crime, experts say the upcoming law change is set to do more harm than good,” said Rehabs UK in a statement.

“The government continues to fail to understand the root cause of the problem,” said Lester Morse, Founder and Director of Rehabs UK. “All the evidence they have around drugs shows them that things get worse when you make substances illegal.”

“Criminalising young people just drives the problem underground, into the margins of society. You increase people’s sense of being dispossessed, you encourage them to hide in the shadows, and ultimately those who are self-medicating against the difficulties of life switch to taking other illegal drugs which become no more of a threat by comparison.”

According to Rehabs UK, reports of a 3600% increase in annual hospitalisations from nitrous oxide misuse often avoid focusing on the fact that this was in an increase from one person to 37, which while significant, remains a tiny number in comparison to the thousands of people hospitalised by other, already illegal substances each year.

“Disillusioned and rebellious young people need to be motivated to choose healthier habits, not punished,” said Morse, who called for the UK to push for provisions to improve social mobility and quality of life rather than to opt for ‘punishment and control’.

Methods of supply

In addition to raising concerns about the drug itself, the BCGA has stated that it will be monitoring how the impact of the new law will address its concerns about the import and supply of capulets which, in its view, are mainly used illegitimately, as well as the small disposable canister, which Hurren says has ‘no business application’.

“Both the capulets and the canisters have been problematic as a means of online supply. Discarded canisters are also causing major safety and environmental issues in Waste Disposal Centres.”

Around 12,000 empty nitrous oxide canisters were cleared from the Notting Hill Carnival earlier this year

In August, around 12,000 empty nitrous oxide canisters were cleared from the Notting Hill Carnival, according to the Royal Borough of Kensington and Chelsea.

Last year, a public campaign was launched by Viridor – operator of the Beddington Energy Recovery Facility – to raise awareness of canisters and their impact on local waste management.

The company claimed that thousands of highly pressurised creamer canisters arrive at the facility mixed in with household waste and can explode when going through the waste treatment process.

Long-term strategy

The Home Office stated that it has gone further than the ACMD advice, taking ‘precautionary, preventative action’ to keep people safe and crack down on antisocial behaviour.

The ban is part of a ‘10-year Drug Strategy’, which has seen the government step up its response to all parts of the supply chain, including the supply of drugs upstream, securing the border and disrupting the highest harm organised crime groups.

The government has also listed the sale of illegal drugs online as a priority harm in its Online Safety Bill, which compels tech companies to consider the risks associated with all elements of their services and take action to keep users safe.

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