Consultation outcome

Nitrous oxide: legitimate uses and appropriate controls

Updated 5 September 2023

Summary of consultation responses and conclusion

5 September 2023

Ministerial foreword

The government is grateful to all those who contributed responses to this consultation to assess the extent and nature of legitimate uses of nitrous oxide and to understand public views on the appropriate controls under which nitrous oxide should be placed in the Misuse of Drugs Regulations 2001.

The government is clear that nitrous oxide has a negative effect on individual people and communities with it being the third most commonly misused drug. There are particularly concerning rates of use by school age children and young adults. While the Advisory Council on the Misuse of Drugs in their 2023 review concluded that the overall harms were insufficient to merit control, there have been anecdotal reports of an increase in social harms such as drug driving and littering of discarded canisters. This is alongside widespread availability of nitrous oxide for illegitimate use and the risk of neurological harm that it presents to those consuming it in significant volumes.

Some of these harms are felt acutely by communities, and as a result the Prime Minister announced in the government’s Anti-Social Behaviour Plan, published on 27 March, that we will be taking decisive action to ban nitrous oxide by making it a Class C drug under the Misuse of Drugs Act 1971.

We believe that it is necessary to control nitrous oxide, but the government recognises that there are legitimate uses for nitrous oxide in many sectors, including medical, industrial and catering. We intend to ensure that those wishing to use nitrous oxide for legitimate purposes can continue to do so lawfully and without undue burdens.

The consultation was open from 2 May to 27 June. This document provides a summary of the consultation responses received. These responses will inform the government’s approach to ensuring that the legitimate use of nitrous oxide can continue lawfully, while its misuse is prohibited once it becomes a controlled drug under the Misuse of Drugs Act 1971.

Rt Hon Chris Philp MP

Minister of State for Crime, Policing and Fire

Executive summary

1. The government announced its decision on 28 March to control nitrous oxide under Class C of the Misuse of Drugs Act 1971 (‘the 1971 Act’). Control under the 1971 Act means that it will be unlawful to possess, supply, import, export or produce the substance, unless an exemption applies (for example, for use in healthcare) or the person undertaking the activity holds an appropriate licence.

2. Nitrous oxide has widespread legitimate and beneficial uses, including in medical, dental, and veterinary settings. It is also used as a fuel additive, a food additive and food extraction solvent and has other widespread uses in industrial processes. The government wishes to minimise the effect of controlling nitrous oxide on those who seek to use it for legitimate purposes, while restricting its availability to those who seek to misuse it.

3. The consultation Nitrous oxide: legitimate uses and appropriate controls, which ran from 2 May 27 June, sought responses to three proposals to enable the legitimate access to nitrous oxide. Proposals 1 and 3 included a requirement to obtain a licence for some purposes, while Proposal 2 would exempt the import, export, possession, production and supply of nitrous oxide from the offences under the 1971 Act, where this is for legitimate purposes, and there would be no need for the vast majority of such users to obtain a licence. Proposal 2 would result in the least burdens on individuals and businesses who seek to use nitrous oxide for a legitimate purpose. The consultation also sought to identify the full range and scale of legitimate uses for nitrous oxide, as well as the mechanisms and nitrous oxide products required for these purposes.

4. The government received 105 responses to the consultation: 84 were responses to the online survey and 21 were received by email. Four of these were received after the deadline and have been considered. There may be duplication in online and email responses if respondents responded to the survey as well as by email. The figures below relate to the online survey consultation unless specified.

5. Alongside seeking to ascertain the extent and nature of legitimate use, the consultation sought views on three proposals:

Proposal 1 – Licensing for all legitimate purposes (outside healthcare).

This would introduce a licensing requirement for all uses of nitrous oxide.

• Exemptions would apply for use in healthcare, as with other drugs.

Proposal 2 – No requirements for licensing for legitimate purposes.

This would exempt the import, export, possession, production and supply of nitrous oxide from the offences under the 1971 Act where this is for legitimate purposes.

• exemptions would apply for use in healthcare, as with other drugs.

Legitimate purposes will be defined in legislation, and the information gathered through this consultation will inform the scope and content of that definition.

Proposal 3 – Licensing for import, export, production, supply and an exemption for possession for legitimate purposes

• an individual or organisation who wished to possess nitrous oxide for a legitimate purpose (as defined in the legislation) would not require a licence for this activity.
• exemptions would apply for use in healthcare, as with other drugs.

6. The target group for the survey were those with a legitimate business or personal interest in nitrous oxide. The government sought to engage those with such interests through government departments and agencies such as the Department for Science, Innovation and Technology, the Department for Business and Trade, the Food Standards Agency, Food Standards Scotland, and trade bodies. The government also engaged with the Department for Health Northern Ireland, which is responsible for implementing changes to the Misuse of Drugs (Northern Ireland) Regulations 2002, which would be necessary to enable the legitimate access to nitrous oxide in Northern Ireland once it is controlled under the 1971 Act.

7. The government has now analysed the responses, and these are summarised in this document. The majority of respondents to the section in the online survey about the impact of the three proposals (48 out of 77 responses, 62%) felt that Proposal 2 – which would not require licensing for legitimate purposes - would have either a low or no impact on their organisation or business in terms of loss of revenue or administrative burden. This compared with 22% (17) of respondents reporting low or no impact for proposal 1 and 35% (27) for Proposal 3.

8. Proposal 1 was deemed to have the highest impact with 43% (33) of respondents reporting that it would have a high impact on revenue and result in an administrative burden. This compared with 10% (8) for proposal 2 and 19% (15) for Proposal 3.

9. The main concerns about the proposals related to cost, time and administrative burden, in particular in relation to Proposal 1, and some mention of potential risks of increased theft, as well as some calls for more clarity on what the proposals would mean in practice.

10. The other key findings from the consultation highlighted that, of those who responded, individual members of the public most commonly use nitrous oxide for food and catering purposes. Among business users, the predominant uses reported are for medicinal, dentistry and veterinary purposes.

11. Further to this, 51% (32 out of 63) of respondents agreed with the given definition of legitimate use: ‘Legitimate use’ refers to uses of nitrous oxide which is not for its psychoactive effect in a recreational capacity’. Very few respondents are aware of viable alternatives (7 out of 39).

12. The responses to the consultation have helped the government to design a legal framework that will permit the use of nitrous oxide for legitimate purposes once it is controlled under Class C of the 1971 Act.

Findings from consultation responses

Introduction

13. The government has drawn out the main themes from the responses to the consultation and used these to inform its approach.

14. In total the consultation received 105 responses; 84 via an online survey and 21 via email.

15. This document does not examine the answers to every question and instead highlights key themes. Numbers and percentages relate to the 84 online survey replies, but the below report draws on comments from responses received both by email and the online survey where pertinent points were raised or specific concerns expressed. As there was routing in the survey, the numbers of respondents to questions varies and therefore the total number of responses has been included in places to make this clear.

16. The below outlines who responded and outlines the key findings.

Types of respondents

17. Of the 84 responses to the online survey, the largest proportion responded to the consultation as ‘a business or an organisation that uses nitrous oxide’ (22, 26%). This was closely followed by ‘a member of the public who uses nitrous oxide for non-psychoactive purposes (e.g., amateur bakers, rocketry, automobile racing)’ (17, 20%)^{[footnote 1]}. Given the range of respondents who selected other, additional subgroups were created. These included enforcement, local authority and medical / dentistry.

18. Around one fifth (20%) of responses were submitted via email. Email respondents included an association representing dentists, a hospital neurology unit, a café chain, a pharmacists’ association, a body representing nurses, several industry bodies whose members use nitrous oxide and an umbrella organisation on behalf of industry, among others.

Table 1. Summary table of survey respondents (n=105)

Type of response	Percentage of overall participants
A member of the public who uses nitrous oxide for non-psychoactive purposes (eg, amateur bakers, rocketry, automobile racing)	16%
A trade body / representative association	5%
A business or an organisation that uses nitrous oxide	21%
A manufacturer of nitrous oxide	2%
A wholesaler / supplier of nitrous oxide	6%
A retailer (including online retailer) of nitrous oxide	2%
Other	11%
Enforcement	5%
Local authority	2%
Medical / dentistry	10%
Email response	20%

19. Of the 17 participants responding to the consultation as a member of public, a majority were located in England (14). This was followed by two from Scotland and one located in the USA.

20. A majority of organisations, trade bodies, associations, wholesalers and retailers of nitrous oxide that responded declared they were within the United Kingdom. One business/organisation reported being located globally and one trade body / association and one manufacture reported being located across / covering Europe.

21. Of the five participants responding to the consultation as a member of a trade body or association, three trade bodies or associations had fewer than 500 members. One trade body or association reported to have over 5000 members. One of the trade bodies or associations represents sole traders.

22. Twenty-two respondents answered the consultation as businesses or organisations which use nitrous oxide. All of these responded with details about the number of their employees. Sixteen reported to have over 250 employees, the remaining six organisations reported fewer than 250 employees.

Responses to proposals 1, 2 and 3

1. The consultation sought views on three proposals:

Proposal 1 – Licensing for all legitimate purposes (outside healthcare).

This would introduce a licensing requirement for all uses of nitrous oxide.

• Exemptions would apply for use in healthcare, as with other drugs.

Proposal 2 – No requirements for licensing for legitimate purposes.

This would exempt the import, export, possession, production and supply of nitrous oxide from the offences under the 1971 Act where this is for legitimate purposes.

• Exemptions would apply for use in healthcare, as with other drugs.

Legitimate purposes will be defined in legislation, and the information gathered through this consultation will inform the scope and content of that definition.

Proposal 3 – Licensing for import, export, production, supply and an exemption for possession for legitimate purposes

• an individual person or organisation who wished to possess nitrous oxide for a legitimate purpose (as defined in the legislation) would not require a licence for this activity.
• exemptions would apply for use in healthcare, as with other drugs.

24. When asked about the impact of the three proposals on revenue and administrative burden, Proposal 2 was deemed to have the least negative impact. For Proposal 2 – which would not require licensing for legitimate purposes - 62% (48 out of 77 respondents to the online survey) reported either low or no negative impact on themselves or their business. This compared with 22% (17) of respondents reporting either no impact or a low impact for Proposal 1 and 35% (27) for Proposal 3, see Table 2 below.

25. Proposal 1 was deemed to have the highest impact with 43% (33) respondents stating that it would have a high impact, compared with 19% (15) for Proposal 3 and 10% (8) for Proposal 2.

Table 2. Summary table of responses to the online survey (n=77)

Proposal	High impact	Medium impact	Low impact	No impact	Impact unknown
Proposal 1	33 (43%)	11 (14%)	5 (6%)	12 (16%)	16 (21%)
Proposal 2	8 (10%)	4 (5%)	19 (25%)	29 (38%)	17 (22%)
Proposal 3	15 (19%)	15 (19%)	12 (16%)	15 (19%)	20 (26%)

Key

• High impact (significant loss of revenue, (more than 30%) and / or administrative burden)
• Medium impact (some losses of revenue (10-30%) and / or some additional administrative burden)
• Low impact (minimal loss of revenue (less than 10%) and / or minimal additional administrative burden)

26. In relation to the potential impacts of the proposals, concerns were raised by both online survey and email respondents about the additional costs, time and resource needed to implement the changes. One survey respondent raised concerns about a possible an increase in theft of legitimate supplies following the nitrous oxide ban and some smaller businesses were concerned about the increases in prices of canisters affecting their costings.

27. Of the email respondents, an organisation representing dentists supported Proposal 1 on the proviso that there were exemptions for healthcare, including dentistry. A response from a neurology unit of a hospital was in favour of Proposal 3 to target ‘recreational’ use and to avoid the challenges in licensing the possession for legitimate use. The response expressed concern about the “significant challenges” that licensing possession would have on legitimate uses of nitrous oxide. An organisation representing ambulance chief executives expressed a preference for Proposal 2 given their concerns about the effect of control under the Misuse of Drugs Act 1971 on the legitimate use of nitrous oxide. In addition, a café chain expressed support for Proposal 2 being the best for their business.

28. Respondents also shared concerns that clarity was needed on the level of controls that will be put in place, in order to better understand the impact of the policy.

Definition of legitimate use

29. The consultation stated that “‘legitimate use’ refers to uses of nitrous oxide which is not for its psychoactive effect in a recreational capacity” and asked for respondents’ views on this definition.

30. Of the 63 that responded, 51% (32) agreed with the definition, with some noting that the simplicity was useful. Of those who did not agree with the definition, there were suggestions that it should be more specific about size of canisters or require more evidence of legitimate use for certain canister sizes. Some also suggested other wording that could be used to provide further clarity. Other responses were broad comments on the nitrous oxide ban rather than those specific to the definition.

Nitrous oxide uses

31. This section of the survey asked participants about their uses of nitrous oxide. This applied to both members of the public using nitrous oxide for non-psychoactive purposes (e.g., amateur bakers, rocketry, automobile racing) and organisations / associations / trade bodies that may sell, purchase, export and import nitrous oxide.

32. Sixteen responses from those identifying as a member of the public who uses nitrous oxide replied to the question with their reasons and use for possessing it. The most common use was food / catering, with respondents mentioning the use of nitrous oxide as a whipping agent for cream and its use in the infusion of cocktails. A few individual respondents also reported possessing nitrous oxide for automotive or aerospace uses and two reported possessing nitrous oxide for medicinal / dentistry / veterinary uses.

33. This varies from the use of nitrous oxides submitted in responses from organisations. Medicinal / dentistry/ veterinary purposes were the most common uses for nitrous oxide. Eighteen out of 22 of participants responding on behalf of organisations selected medicinal / dentistry / veterinary as the most common use for nitrous oxide. Several respondents mentioned the use of nitrous oxide for Entonox, which is the mixture of 50 per cent nitrous oxide and 50 per cent oxygen for medicinal purposes in organisations ^{[footnote 2]}.

Did respondents hold a Home Office drugs licence?

34. Forty-five of the 84 online survey respondents answered the question on whether they held a Home Office drugs licence. Of those 45 respondents, seven (16%) reported that they held a Home Office drugs licence, 33 (73%) stated that they did not hold a licence and five (11%) replied that they do not know whether they held a Home Office licence.

Other requirements to purchase nitrous oxide

35. The survey asked individual participants and organisations if they needed a licence, authority, or some other form of accreditation or regulatory approval to purchase nitrous oxide for legitimate use. A total of 44 responded, with nine responding yes and 31 responding no. Four responded that they do not know if they need a licence. The majority of those who selected yes reported that that the licensing was required due to medicinal use.

Alternatives to nitrous oxide

36. Twenty-two respondents from organisations responded to the question asking if there were viable alternatives to nitrous oxide. Seven replied that there were, with several of these mentioning Penthrox (Methoxyflurane). Penthrox is inhaled to relieve moderate to severe pain in conscious adults with trauma and associated pain. An email respondent from the medical/dentistry sector mentioned Ketamine as an alternative, however the respondent also mentioned that it also has significantly greater potential harm than Entonox (a mixture of half oxygen and half nitrous oxide).

37. All seventeen individual users who responded to the question about alternatives to nitrous oxide reported that there were no viable alternatives for nitrous oxide for their (non-psychoactive) purposes, such as amateur bakers. An email respondent also replied that there were no alternative products that can be used as a foaming agent as set by the Food Standards Agency. ^{[footnote 3]}

Use and handling of nitrous oxide (organisations)

38. Twenty-two organisations reported that they either use or handle nitrous oxide. When organisations were asked how they dispose of any surplus quantity of nitrous oxide and / or the nitrous oxide dispensing, the majority of respondents who replied reported that they dispose of any surplus nitrous oxide by returning it to the supplier or manufacturer. Other ways of disposal mentioned were using a fume hood vent, recycling the empty canisters or that the nitrous oxide was used until the cylinder was completely emptied.

Forms and volumes of nitrous oxide and grade of nitrous oxide used

39. This section of the survey asked participants about the forms and volumes of nitrous oxide used and if any additives were present. This applied to all sectors responding to this consultation.

Grade of nitrous oxide used or possessed

40. Seventeen respondents replying as individual users responded to the survey question about the grade of nitrous oxide they used or possessed. Of these, 10 (59%) individual users reported using food grade nitrous oxide, four (24%) reported their use of and/ or possession of other commercial/industry grade nitrous oxide, two (12%) reported to use medical grade nitrous oxide and the remaining two (12%) did not know.^{[footnote 4]}

41. Of the 22 organisations who responded to the question, 19 (86%) respondents stated that they use medicinal grade, followed by two (9%) using and/ or possessing nitrous oxide at a food grade.

Canister types and sizes

42. Out of the 25 individual users and organisations who answered the question about the forms of nitrous oxide they used, 13 (52%) replied to state that they use an 8g canister. Nine out of 13 who reported using 8g canisters were individual users. Of those who responded yes, the reported quantities purchased per order ranged from 12 - 96 canisters, while the number of orders over the past 12 months varied greatly from one to 2,500 orders.

43. Of the 23 respondents who replied to the question about the 600g canisters, nine (39%) reported using these as a form of nitrous oxide. The reported quantities purchased per order ranged from one to 900 canisters, while the number of orders over the past 12 months varied from four to over 12,000 orders.

44. Those responding as a wholesaler or manufacturer were asked about the volume of nitrous oxide that they import or export annually. Two of those respondents reported that they import between 3,700,000 to 4,000,000 grams of nitrous oxide.

Contaminants

45. Twenty-three respondents replied to the question which asked if contaminants or additives were contained in the nitrous oxide they use. Most responded to say they were not. Those who responded to say that they do use contaminants or additives, mostly reported that it is mixed with oxygen, which creates Entonox, used for medicinal purposes. A few responded that some ‘flavouring’ and ‘E942’ is added.

Nitrous oxide related paraphernalia

46. Retailers were asked whether they sold nitrous oxide associated paraphernalia such as ‘crackers’ (puncturing tools for instant inhalation) as well as nitrous oxide. While there were only two responses, both replies stated that they did not.

Handling and labelling of nitrous oxide

47. Approximately a third of respondents (34%, 25 out of 73) reported that they label nitrous oxide products which they manufacture, handle or sell. In comparison, 66% (48) said they do not label nitrous oxide products. Some respondents reported that their nitrous oxide is either labelled by them or that the nitrous oxide is received already labelled. A few mentioned that the labelling is done in accordance with the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009.

48. Respondents were asked about the potential impact of introducing new requirements for labelling nitrous oxide on themselves or their businesses. Seventy-six participants responded to this question, with 17 of these (22 per cent) reporting a high impact on themselves and/ or their organisations. These respondents suggested that these new requirements would lead to additional cost for manufacturers and concern about the effect on the MHRA labelling. However, some respondents replied that they would require further detail to determine the possible impact on themselves and / or their organisations. Twenty-six respondents (34%) said there would be no impact.

Conclusion

49. This report sets out the findings of an in-depth analysis of the responses to the consultation Nitrous oxide: legitimate uses and appropriate controls. The purpose of the consultation was to help inform the government’s approach to:

(a) understanding the full range of legitimate uses of nitrous oxide and proposes three options for how to approach a regime of control; and

(b) to enable the government to ensure that the burdens placed on those who seek to use and handle nitrous oxide for legitimate purposes are minimised.

50. The main findings from members of the public and businesses can be summarised as follows:

• respondents felt Proposal 2 would have the least impact on loss of revenue or administrative burden
• there is a range of nitrous oxide use, including use for food and catering and medicinal / veterinary needs
• there was a general concern about the possible increase in additional costs, time and resource that would be needed if changes were implemented
• very few individual users or organisations are aware of viable alternatives to nitrous oxide

51. The findings highlighted in this report provide insight to various businesses and organisations’ opinions on the possible effects of the three proposals outlined in the nitrous oxide consultation. However, these findings may not be representative of the population as a whole and therefore, caution must be taken when interpreting and generalising results.

52. The responses to the consultation have helped the government to design a legal framework that will permit the use of nitrous oxide for legitimate purposes once it is controlled under Class C of the 1971 Act.

Annex A

The consultation analysis methodology

1. An online survey was used to collect data from members of the public and organisations to understand their attitudes towards the nitrous oxide proposals. The survey consisted of a combination of open and closed-ended questions. The data was analysed using a multi-faceted approach, including descriptive analysis and thematic analysis. In addition to this, organisations were given the opportunity to send extended email responses, to give more detail about how the nitrous oxide proposals might impact their organisation.

2. Incomplete online survey responses were not considered as part of the government’s response on the grounds that the respondent had not formally submitted the data and may not have intended for their responses to be read.

3. Data from responses to the quantitative (closed) questions in the consultation (i.e., those that invited respondents to choose an answer) were extracted and analysed. All qualitative responses (i.e., those responses to open questions or where a respondent provided an emailed response covering themes in the consultation, rather than answering specific questions) were thematically analysed.

4. Participants were recruited via voluntary response sampling meaning that respondents had to have sufficient interest in the survey to respond. Due to the sampling technique used and what we know about the demographics of respondents, key views may have been missed and therefore the findings from this consultation cannot be generalised. Caution should therefore be made when interpreting the findings in this report.

Footnotes

1. Respondents may have interpreted the categories differently and therefore some may have selected ‘other’ rather than the categories available. These respondents were included under ‘other’ due to survey routing options. ↩

2. Nitrous oxide: neurological and haematological toxic effects ↩

3. Managing food safety - Food Standards Agency ↩

4. Percentages add up to more than 100% as respondents could select multiple options. ↩