On November 8, 2023, the Misuse of Drugs Act 1971 (Amendment) Order 2023 made nitrous oxide a Class C drug in England and Wales under the Misuse of Drugs Act 1971. Possession of this drug is now punishable by up to three months’ imprisonment or a fine of up to 1,000 British pounds (approximately US$1,250), or both penalties. Individuals supplying this drug face up to 14 years’ imprisonment or an unlimited fine, or both.
While it is illegal to produce, import, sell, or supply nitrous oxide for its psychoactive effect under the Psychoactive Substances Act 2016, the drug has been the third-most used drug in England and Wales since 2012 and is especially popular among 16–24 year olds. In its plan, the government noted that some retailers have been selling nitrous oxide without checking the intended use of the drug without facing any consequences.
In March 2023, the Advisory Council on the Misuse of Drugs (ACMD) updated its harms assessment of nitrous oxide. The harms assessment did not recommend adding nitrous oxide to the list of scheduled drugs under the Misuse of Drugs Act 1971 due to the low levels of health and social harm posed by the drug, the disproportionate level of sanctions in relation to the harms caused by the drug provided for by the 1971 Act, and the burden on those who legitimately use the drug that would be imposed by adding nitrous oxide list of scheduled drugs. Instead, it recommended that the drug continue to remain under the Psychoactive Substances Act 2016, with the focus being on enforcing these provisions and reducing the nonlegitimate supply of the drug.
The government disagreed with the recommendations of the ACMD due to the issues of antisocial behavior caused by the use of nitrous oxide. The addition of nitrous oxide to the list of scheduled drugs under the Misuse of Drugs Act 1971 is part of the government’s Anti-Social Behaviour Action Plan. The plan notes that, while the number of deaths from and need for treatment for addiction to the drug are low, the use of nitrous oxide is linked with antisocial behavior, littering, health risks for users, and driving under the influence, and accordingly it should be a classified drug under the Misuse of Drugs Act 1971.
The use of nitrous oxide for legitimate purposes in health care and other industries is exempt from the ban. A license to carry nitrous oxide for individuals in these areas is not required, “but individual users will need to demonstrate they are lawfully in possession of nitrous oxide and not intending to wrongfully inhale it.”
The Misuse of Drugs Act 1971 controls dangerous and harmful drugs in Great Britain and provides for a three-tier system of classification — A, B, and C — according to their level of harm to individuals or society at large when misused, with A being considered the most harmful. Once these drugs are included in the Misuse of Drugs Act, their possession is punishable by up to life imprisonment or an unlimited fine, or both.
Clare Feikert-Ahalt, Law Library of Congress
January 5, 2024
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