The government’s announcement to make nitrous oxide illegal in England and Wales caught many people by surprise, including the Advisory Council on the Misuse of Drugs which had said this measure wasn’t necessary only a couple of weeks previously. So what’s going on?
Just as it is hard to escape seeing discarded nitrous oxide canisters in parks and on pavements, it has been hard to avoid nitrous oxide in the news. Most recently was a significant story: a government announcement of plans to make possession of so-called laughing gas a criminal offence for the first time in England and Wales.
The statement was made as part of a raft of measures to tackle anti-social behaviour, including getting vandals to repair the damage they cause as part of a community payback scheme, and new police powers to tackle homelessness and begging where they are considered to be a nuisance. When it comes to nitrous oxide, what the change appears to involve is moving the drug so it sits under the Misuse of Drugs Act 1971 rather than the Psychoactive Substances Act 2016.
There are significant differences between these two pieces of legislation. The Misuse of Drugs Act basically defines the substances that are misused for recreational purposes and controls their distribution and use; this is the source of terminology such as the criminal offences of “possession” and “supply” , for example. The Psychoactive Substances Act was introduced as a response to the increased rate at which new synthetic drugs were being produced in the 2000s, and much more broadly criminalizes the production and sale of any psychoactive substance, but has a list of exempt drugs such as alcohol, nicotine and caffeine.
The current situation in which there is no penalty for possession of nitrous oxide will change when it moves to the Misuse of Drugs Act and the plan is for it to be a Class C alongside most benzodiazepines and anabolic steroids. There will also be tighter controls on retailers, as the current situation creates loopholes under which they can claim they are selling nitrous oxide for legitimate means such as culinary purposes.
Sounds good, doesn’t it? So why was this not the recommendation of the influential Advisory Council on the Misuse of Drugs, which makes recommendations to the government on the control of harmful substances? Well, in its review of nitrous oxide, the ACMD said that while there was a need to tackle non-legitimate supply and alert people to its risks, the harms were not significant enough to change its legal status. Furthermore, concerns have been raised that criminalizing nitrous oxide will disproportionately penalize young people, who comprise the bulk of recreational users.
There is no doubt that enforcement has a place in reducing the harms caused by drugs, and nobody can argue against the sterling work that is done by agencies such as UK Border Force and the police in tackling the amount that gets into the supply chain. But it is important to address the issue from the other end too: demand has to decrease, and the ACMD highlighted the need for education to this end – we agree. Another ACMD recommendation in its review of nitrous oxide was for more up to date information to be available to the public, and this is also a space we are starting to occupy… but we’ll talk about that more another time.