The nitrous oxide ban: what you need to know

by Katya Kowalski

Nitrous oxide (NOS) has been banned by the UK Government and will become illegal from 8 November 2023. Guidance to date has been confusing, especially given the legitimate uses of the substance for medicine and catering. The Home Office have published their factsheet with all of the key information you need to know regarding the ban and the real reason behind why it is happening. Let’s break it down.

What is NOS?

Nitrous oxide is a colourless gas. While it has legitimate uses in medical, culinary, industrial, and other fields, it can also be used as a recreational drug by inhalation. In England and Wales, NOS is the third most used drug after cannabis and cocaine respectively. Use is most prevalent amongst young people, with around 4% of the 16-24 year olds having used NOS in the past year. 

What are the new legal changes? 

It has already been illegal to produce, supply, import or export NOS for psychoactive purposes under the Psychoactive Substances Act 2016. But the law has been updated. Here’s what is going into effect starting from 8th November 2023: 

  • Possession: Having nitrous oxide without a valid reason is illegal and is now categorised as a Class C drug under the Misuse of Drugs Act 1971. If found in possession with the intention of inhalation for psychoactive effects, individuals could face an unlimited fine, community punishment, or a caution. Repeat offenders could even face up to two years in prison.
  • Supply or Production: The penalty for supplying or producing NOS has doubled, with a potential prison sentence of up to 14 years.

What counts as legitimate use?

Nitrous oxide isn’t just for recreational use. It’s used for pain relief in medical settings, in the food industry as a whipped cream propellant, and in hobbies like drag racing and model rocketry.

Will you need a licence to use NOS?

No, you won’t need a licence to use nitrous oxide for legitimate purposes. If questioned, it’s up to individuals to provide a robust case and evidence of their intentions.

Why did the government ban it? Their side of the story

The government have given the following reasons for law change:

  • Health risks: Heavy use of NOS can lead to severe health issues like neurological damage and even death.
  • Antisocial behaviour: Communities are witnessing increased gatherings where NOS is abused, leading to littering and associated disturbances.
  • Accidents: There have been reported deaths linked to drug driving incidents involving nitrous oxide.

Wait, doesn’t this go against the ACMDs recommendations?

Yes, it does. The dissonance between the ACMD and government implementation is part of what makes this not make much sense at all.

The Advisory Council on the Misuse of Drugs (ACMD), the independent expert drugs body appointed to advise the government on these matters published their recommendations earlier this year in March. They said that reclassifying NOS would have disproportionate, unjustified and likely to have unintended consequences. 

In their report, the ACMD concluded that NOS is widely used amongst young people, the harms caused have not changed since their last report in 2015, and deaths remain very low compared to other drugs. There are anecdotal accounts of social harms increasing but these aren’t clear and haven’t been measured much yet. 

Their advice was for changes to be evidence based and proportionate. They recommended the following: 

    • It should not go under control of the Misuse of Drugs Act and should remain under the Psychoactive Substances Act 2016
    • Non legitimate supply should be shut down and there should be restrictions on direct consumer sales 
    • There should be prevention activity done to reduce use. There should also be information, advice, resources and support around drug treatment to help those that are using harmfully
    • Health and social harms should be monitored 

The government decided to go in direct opposition to their recommendations, stating that they have decided to go for a ‘precautionary approach’ due to the ‘negative effects communities and the broader harms of nitrous oxide misuse’.

Why did the government REALLY ban NOS?

The government suggesting that their move to ban NOS is a ‘precautionary’ one is utterly ridiculous, the effects this will have on young people and communities is far from precautionary and will only cause more significant harm

The banning of NOS was an entirely politically motivated stunt from the government to appear tough on crime, drugs and antisocial behaviour. As indicated by the ACMDs evidence based recommendations, the ban was not based on evidence, but political rhetoric. 

It is important to highlight that antisocial behaviour, drug driving, littering, selling NOS to children and supplying it for recreational use are all already illegal. Banning NOS itself isn’t necessary. However, going further to criminalise possession will do nothing to address these issues. It’s really just a populist stunt to try and win votes. 

Arguably the ban goes against the government’s 10 year drug strategy in which they highlighted the need for more of a health based approach to drugs, rather than a criminal one.

This is a total step away from reform – haven’t we learnt enough from the war on drugs and prohibition? 

What we should be doing is working to reduce the harms as a result of the evolving patterns of NOS use. There are far better ways of implementing change through better drug education, public health interventions and diversion schemes relating to the drug. 

What this ban will do is divert resources from more severe crimes and push the drug into a dangerous and unregulated market. This will give young people a higher chance of coming into contract with the illicit drugs market and contact with the criminal justice system.  

There’s definitely a question to be asked around how the NOS ban will be enforced and policed. As mentioned earlier in the article, there won’t be a process for people to have a ‘licence’ to use and be in possession of NOS, so it will really be up to the police to make a decision, likely resulting in the law being enforced to disproportionately affect vulnerable groups.  

This ban won’t make NOS go away, it’ll just become more dangerous. 

The piece was written by Katya Kowalski, Head of Operations at Volteface. Tweets @KowalskiKatya 

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