Government response: ACMD advice on scheduling and lawful access to nitrous oxide
Updated 5 September 2023
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Professor Owen Bowden-Jones
Chair, Advisory Council on the Misuse of Drugs (ACMD)
Professor Roger Knaggs
Chair, ACMD Nitrous Oxide Working Group
C/o 1st Floor, Peel Building
2 Marsham Street
London SW1P 4DF
By email only: ACMD@homeoffice.gov.uk
September 2023
Dear Professor Owen Bowden-Jones and Professor Knaggs,
Government response to the ACMD advice on appropriate scheduling of nitrous oxide under the Misuse of Drugs Regulations 2001
I am grateful to the ACMD for their considered advice and the speed at which this was provided. Controlling nitrous oxide remains a government priority and this advice is invaluable in ensuring this can be delivered swiftly and effectively.
It was a pleasure to meet you on 31 August to discuss your recommendations. I have set out each recommendation and the government’s response below:
Recommendation 1
The ACMD recommends that:
- nitrous oxide be inserted into Schedule 5 of the Misuse of Drugs Regulations 2001
- Schedule 5 of the Misuse of Drugs Regulations 2001 be amended specifically for nitrous oxide to enable all activities required for legitimate uses
- Schedule 5 of the Misuse of Drugs Regulations 2001 be amended specifically for nitrous oxide to enable control of import and export, production, possession and supply for non-legitimate uses
Government response:
The government accepts this recommendation. We will amend the Misuse of Drugs Regulations 2001 to place nitrous oxide in Schedule 5 to the 2001 Regulations and make provision for lawful access to the substance for legitimate purposes, including medical use. We will exclude it from the provisions which ordinarily make possession, import and export of Schedule 5 drugs lawful. This approach also avoids the need for licensing nitrous oxide, further reducing burden on legitimate users.
Recommendation 2
The ACMD recommends that further consultation is needed with other government departments and stakeholders to:
- agree a legally robust definition of legitimate use of nitrous oxide, ensuring coverage of legitimate non-medical-related uses
- determine any unintended implications or consequences of the proposed definition
Government response
The government agrees that it is important to ensure all legitimate uses are exempted and avoid unintended consequences such as inadvertently criminalising legitimate users or creating loopholes. It is for that reason that we have decided to take a broad approach and make uses of nitrous oxide lawful except where the drug is likely to be inhaled by humans. All other legitimate uses that do not involve inhalation by a human will be considered lawful. There will be exemptions for inhalation for legitimate medical uses and secondary inhalation (e.g. gases in the atmosphere).
Given the broad approach, we do not deem it necessary to formally consult on this approach however, we will engage stakeholders, including enforcement partners, to test the wording of the proposed legislation.
Recommendation 3
The Home Office should review international evaluations as soon as they become available, and where applicable apply lessons learned.
Government response
The government accepts this recommendation and will undertake an evaluation of international comparisons, including the Netherlands, as soon as data is available.
Recommendation 4
The Home Office should design a framework for the assessment and evaluate the impact of classification of nitrous oxide under the Misuse of Drugs Act 1971 and scheduling under the Misuse of Drugs Regulations 2001. This review should take place after legislative changes are implemented and once sufficient data are available.
Government response
In response to recommendation 7 of your updated harms assessment, the government committed to make an assessment of the impact of any changes implemented as a result of the ACMD’s 2015 and 2023 reports. I will ensure that the points raised in this recommendation form part of the review.
Rt Hon Chris Philp MP
Minister of State for Crime, Policing and Fire