There are legitimate uses for nitrous oxide, such as in medicine, dentistry and as a propellant for whipped cream canisters. However, there are offences, with limited exemptions, in the Psychoactive Substances Act 2016 (the 2016 Act) relating to the supply and possession with the intent to supply nitrous oxide. Those convicted of either of these offences may be subject to a maximum sentence of seven years’ imprisonment, or a fine or both. There were 152 convictions for offences under the 2016 Act in England and Wales in 2017, 107 convictions in 2018 and 52 convictions in 2019. These included convictions related to nitrous oxide.

When the 2016 Act was introduced the Government published guidance for retailers to satisfy themselves that they comply with the law. This is available on the GOV.UK website and remains relevant to support retailers today. The guidance recommends that retailers, including those operating online, should pay particular attention to the potential for abuse of nitrous oxide, especially where customers seek to buy in bulk or large volumes.

In the Queen’s Speech on 19 December 2019, the Government committed to develop legislation to improve internet safety for all. This will build on the proposals in last year’s Online Harms White Paper, which set out the Government’s plans for world-leading legislation to make the UK the safest place in the world to be online. Illegal and harmful activity online such as the supply of psychoactive substances for their psychoactive effect will fall within the scope of the planned legislation. The Government intends to establish in law a new duty of care on companies towards their users, overseen by an independent regulator. The duty of care will ensure companies have appropriate systems in place to deal with harmful content on their internet services and keep users safe. On 12 February the Government published an initial response to the Online Harms White Paper consultation. A full Government response is being worked on, which will include more detailed proposals on online harms regulation. Following this, the Government will introduce Online Harms legislation when parliamentary time allows.

The Advisory Council on the Misuse of Drugs provided advice on both the harms of nitrous oxide and public health safety in 2015. It concluded that its harmfulness did not warrant control under the Misuse of Drugs Act 1971. Nitrous oxide is not controlled under the Misuse of Drugs Act 1971 and there is no offence of simple possession in the 2016 Act, except that it is an offence, subject to limited exemptions, to possess a psychoactive substance in a custodial institution such as a prison because of concerns about the effects of psychoactive substances in prisons. This stems from the origin of the 2016 Act in addressing so-called ‘legal highs’ at the time and the focus on preventing supply while not criminalising those who use the substances for recreational purposes.

FRANK, the Government’s free advice drugs service, contains a section on nitrous oxide. FRANK receives over 500,000 visits per month with high levels of awareness and trust. User research commissioned by Public Health England has shown that 83% of 18 to 24-year-old adults are aware of the site and 85% of its users trust FRANK to provide reliable information about drugs.

Schools play a key role in enabling young people to make positive choices about their wellbeing, including resisting drug use. Relationships, Sex and Health Education (RSHE) will become a compulsory subject in schools from September 2020. However, in light of school closures the Department for Education recognises that some schools may not be able to begin teaching the new content until the start of the summer term 2021. Schools will have the freedom to ensure the curriculum meets the need of their pupils. This flexibility will allow schools to respond to local public health and community issues such as nitrous oxide misuse and adapt material and programmes to suit the needs of pupils.

Home Office