No Laughing Matter: The Nonsense Plan to Criminalise Nitrous Oxide

By Professor David Nutt 

Placing Nitrous Oxide in the Misuse of Drugs Act 1971 

Yesterday Michael Gove announced the government’s plan to make the selling of nitrous oxide (laughing gas) illegal under the Misuse of Drugs Act 1971 (MDAct1971). The justification for this planned change in the law is to reduce its use in public places with the subsequent littering of the small metal canisters or whippits that the gas is sold in. Why the use of nitrous oxide and littering of whippits should demand criminalisation of perpetrators whereas the use of alcohol with littering of cans and bottles will only attract civil sanctions (if dealt with at all) exposes the intellectual dishonesty behind the proposed law.

Another bizarre aspect of the Gove statement is his apparent ignorance of the fact that selling nitrous oxide is already illegal under the Psychoactive Substances Act and has been since 2016. The sole difference between the two Acts is that under the Psychoactive Substances Act possession for personal use is not a criminal offence. Under the MDAct1971 possession for personal use will attract a penalty of up to 2 years in prison if nitrous oxide is put into Class C of the Act, or more if placed in a higher Class. Even if only 10% of current nitrous oxide users were incarcerated this would double the prison population!  The financial absurdity of this would hopefully dissuade judges from passing custodial sentences but the social and employment impact of having another million young people getting criminal records would be disastrous. If the Home Secretary really thinks that a threat of arrest will stop use she has clearly not been made aware of repeated failures of similar policies for many drugs, especially cannabis.

Another peculiar quirk in the law was noted by Rudi Fortson KC (Barrister, Visiting Professor of Law at Queen Mary University of London, and at the University of Liverpool ): 

It would be unusual for a gas to be classified as a ‘controlled drug’ under the MDA 1971. In cases where nitrous oxide is contained in a balloon, the person holding it is in possession of the balloon and the gas. But possession of the gas will ‘evaporate’ once the gas is released – which may pose some challenging issues of enforcement if the gas were to be classified as a ‘controlled drug’.” 

The atmosphere of heaven

Nitrous oxide is a Great British invention. It was discovered by Joseph Priestly in Birmingham in 1780, though it wasn’t until 1799 that its profound impact on human consciousness was reported by Humphry Davy. He started breathing the gas sitting in a closed box, designed by the pioneering steam engineer James Watt, which was filled with nitrous oxide. Davy then inhaled more from a silk bag after which he reported “he lost touch with all external things” entering a world of pure thought which he described as a “world of newly connected and newly modified ideas” that combined in such a manner as to produce “perceptions perfectly novel”. 

As Mike Jay describes in his new book ‘Psychonauts‘, Davy was the President of the Royal Society, and, as one of the greatest scientists this country has ever produced, his insights were taken seriously. He saw that nitrous oxide inhalation opened the mind in a way never before possible and encouraged other scientists, writers, and philosophers to do the same. He even started a new branch of science based on these insights – Chemical Philosophy – the use of nitrous oxide and other mind-altering substances to facilitate philosophical introspection. It was the time that the new philosophy of Kant, Hegel, and others was emerging. At their core was the radical emphasis on the centrality of human experience to understanding the natural world, encapsulated in the phrase of Kant’s “nothing exists but thoughts”. Today this construct is accepted by most philosophers and neuroscientists but then it was a revolutionary idea. A dose of nitrous oxide made this complex philosophical concept much more understandable!

But there was another side to nitrous oxide –as well as giving profound insights into the capacity and performance of the mind it was also fun. The poet Robert Southey, one of the first non-scientist users described nitrous oxide as “the atmosphere of heaven”. Taking laughing gas for fun became a popular pastime at parties and it was widely used in theatres and music halls. These exhibitions revealed that people under the influence did not feel pain. This observation led to its becoming used as an anaesthetic which it still is today, especially for childbirth and re-setting dislocated joints and broken bones. Probably the first and only example of a music-hall trick leading to a medical advance!

Modern media machinations

Today, after two hundred years of untroubled use, nitrous oxide use is now under threat of being made a criminal act. Why is this? The government’s expressed concern is that the use of nitrous oxide is harmful to users and a cause of social disorder. They are responding to scare stories that have been initiated by some parts of the media, especially The Sun and The Daily Mail who have been vilifying the users of nitrous oxide for nearly a decade, complaining about the littering of whippits and campaigning to get it banned. The rationale for this campaign appears to be that nitrous oxide has become popular with young people and especially in the case of The Sun, by professional footballers. Many top footballers have been shamed by The Sun, which has printed photos of them inhaling a balloon of nitrous oxide and claimed they were either breaking the law (which they were not) or letting their clubs down. These photos were usually taken illicitly on the mobile phones of other people engaging in the same activity and sold to the newspapers. 

Realising that the public and politicians would probably not be much concerned about the use of laughing gas, especially when most of their mothers had been given it in childbirth, The Sun invented a new name to scare us:“hippy crack.” This is a ridiculous name, as nitrous oxide is as far removed from crack cocaine as paracetamol is from heroin. It was clearly designed to provoke a moral panic. Thankfully, this pejorative term has been challenged by academics and largely discarded. But the hatred of nitrous oxide and its users persists.

Why has nitrous oxide become so popular?

Recreational use of nitrous oxide has become common in the last twenty years, and with the number of users now similar to that of cannabis, though the reasons for this resurrection in popularity are not well studied. They probably reflect a confluence of several factors.

One factor is that a supply of the gas is readily available at food grade quality in small metal cannisters (often called whippits) that are widely used by the catering industry to froth creams. Nitrous oxide is tasteless and odourless and disappears almost instantly from the product. The whippit is opened and the gas escapes to fill a balloon. The gas is then inhaled from the balloon which almost instantly produces a state of powerfully altered consciousness, often with a sudden release of mental tension that leads people to laugh. The effects wear off within a minute or two and full normal consciousness is restored.

Another factor in the growing appeal of nitrous oxide is the short-acting nature of the high from inhalation. The effects of nitrous oxide dissipate in minutes, whereas a comparable high from alcohol last hours and is often followed by a hangover. Nitrous oxide users know that this enduring nature of alcohol intoxication is dangerous and makes them vulnerable to accidents or assaults for many hours, whereas they are perfectly in control of their senses a few minutes after using nitrous oxide, so are less vulnerable and can even drive home safely. One other advantage is that nitrous oxide produced in whippits for food preparation is pure, so users know what they are getting. 

A third factor is that nitrous oxide is much less harmful than alcohol and most other recreational drugs. Over the past twenty years, several international expert groups from the UK, Europe and Australia, have compared the harms of most common recreational drugs and all have concluded that nitrous oxide is amongst the least harmful. The latest ACMD report confirms this comparative safety, which is why it did not recommend controls under the MDAct1971.    

The dangers of nitrous oxide

All experts agree that nitrous oxide scores low on ratings of risk and harm. For example, it is responsible for 1-2 deaths a year from about a million users compared with nearly 30,000 deaths from alcohol from about 30 million users, a thousand-fold difference. Another interesting comparison is that deaths from helium outnumber those of nitrous oxide over tenfold.   

But nitrous oxide isn’t harmless, especially if used excessively. The biggest risk is that it can cause nerve damage because it depletes vitamin B12. The first signs of this damage are tingling in the feet and fingers that can then progress to paralysis of the nerve or even the spinal cord. Some heavy users end up in wheelchairs. This wasn’t very common in the days when people used balloons filled with whippits. Since the police have clamped down on the sale of whippits using the powers of Psychoactive Substances Act, users have moved to cylinders. It’s easier to hide a cylinder than a box of whippits as the latter tend to disclose their presence by clinking when moved! But cylinders have many more doses than whippits and as more doses means more harms. The rise in nerve paralysis is due to this perverse effect of prohibition, yet another of many examples of prohibition causing greater harms than permissiveness.

Other harms from extensive nitrous oxide use include starving the brain of oxygen causing confusion, vomiting and in rare cases, death from asphyxia. Heavy use of nitrous oxide can cause dependence which means that some people can’t stop so have more risk of nerve damage. For more information on the harms of Nitrous Oxide, please visit our Nitrous Oxide Drug information page. 

Do we need a change in the law?

The sale of nitrous oxide is currently illegal under the Psychoactive Substances Act of 2016, though whether it is actually psychoactive in the strict definition of this Act is still being challenged in the courts. However, possession for personal use is not. There is no agreement on how many whippits are an acceptable number for personal use, each case having to go before a jury.  There are examples of jury’s making convictions for selling with people arrested for possession of a hundred whippits or less, though in one recent case the jury found of possession of several thousand to be within the realm of personal use.

When decision-makers go against scientific advice in public health matters, the consequences can be catastrophic. This time they are going against the advice of their own Advisory Council on the Misuse of Drugs which recommended not banning nitrous oxide. Below is a quote from the ACMD’s report updated on the 27th of March:

“Based on this harms assessment, nitrous oxide should not be subjected to control under the Misuse of Drugs Act 1971 for the following reasons:

a. Level of health and social harms: current evidence suggests that the health and social harms are not commensurate with control under the Misuse of Drugs Act 1971.

b. Proportionality of sanctions: the offences under the Misuse of Drugs Act 1971 would be disproportionate for the level of harm associated with nitrous oxide and could have significant unintended consequences.”

Altogether, this antisocial behaviour pack coupled with current Home Office policies constitute an effort for this government to increase the gap in our society by increasing the chances of giving convictions to young people. 

Were nitrous oxide to be moved into the MDAct1971 then personal possession would be illegal too. The idea that criminalising personal possession would somehow stop use is bizarre, since it has never stopped the use of any other drug, and it might make health harms worse if it were to drive all users from whippits to cylinders. Since the police have not exercised their freedom to prosecute shops selling nitrous oxide, one wonders why they would want to do something even more ethically challenging, like breaking into people’s homes on the off-chance that they had a few whippits or a cylinder in their possession, and then having to prove that they were not being used to whip cream. Were the police to succeed in getting prosecutions then we could see many young people with criminal records. This would be foolish, reprising the disaster of the early 2000s when the Blair government tried to prosecute cannabis users to reduce cannabis use. The police were incentivised to find and arrest those in possession, a misguided plan that failed in three ways. It drove the growth of stronger variants such as skunk, encouraged the development of much more dangerous synthetic cannabinoids (aka spice) and created a million disaffected and marginalised young people, largely of BAME backgrounds, whose life chances were stifled by their criminal records. Furthermore, pursuing such an irrational policy undermined public confidence in the police.

There are much more sensible approaches. As well as education about the risks to all teenagers, the current ban on the sale of large cylinders of gas could be enforced, except for licensed caterers. Each whippit should come with a 10p deposit payable on return which would surely eliminate littering! Finally, given nitrous oxide is much less harmful than alcohol, maybe nitrous oxide should be taxed and licensed nitrous oxide bars approved to provide safe places to use.

The current government’s attack on nitrous oxide under the guise of reducing social disorder and littering without a comparable approach to alcohol is dishonest, impracticable, wasteful of police time and taxpayers’ money and risks creating another round of criminalised young people. Given these failings, it might not pass through the parliamentary process. But this will require the Labour party to call it out for what it really is, a simple pre-election populist ploy to vilify young people who do not vote. Will they do this and support proper harm reduction policies for nitrous oxide and other drugs is the question, or will they like Blair and Brown, try to be tougher than the Tories?  

This research was published in the Drug Science, Policy and Law Journal the definitive source of evidence-based information and comment for academics, scientists, policymakers, frontline workers and the general public on drugs and related issues

For open-access to the full report of this research, see below: