Nitrous Oxide (N2O) – Unregulated? Unsafe?
Although nitrous oxide, N2O, laughing gas or (more commonly) NOS is in the public eye at the moment, concerns over the substances negative impact on health go back a long way. Over 20 years ago an American organisation (National Institute for Occupational Safety and Health) raised concerns that medical staff could face a health risk through occupational exposure to the gas as it entered their immediate environment when used as an anaesthetic during medical procedures. Alarmingly, the report noted:
“Several human studies have shown that occupational exposure to N2O may cause reduced fertility, spontaneous abortions, and neurologic, renal, and liver disease as well as documented decreases in mental performance, audio-visual ability, and manual dexterity. Moreover, animal studies have shown that exposure to N2O during gestation can produce adverse health effects in offspring” 
Given the above, it is hardly surprising that N2O is a controlled substance. The problem is, the way it is controlled leaves some sizeable loopholes; exploitation of these loopholes has led to N2O becoming the Country’s second most popular recreational drug. The 2014 National Crime Survey details a figure of 7.6% of 16-24 year olds stating that they had used N2O in the last year.
N2O is regulated through the UK’s system of product regulation, mostly created through the implementation of a number of European Directives. Directive 2001/83/EC, as implemented through the Human Medicines Regulations 2012 (HMR), controls a wide range of substances but only where such substances are used with a view to “restoring, correcting or modifying a physiological function by exerting a pharmacological, immunological or metabolic action or making a medical diagnosis”. Where N2O is supplied in large canisters with the necessary attachments to facilitate use in a medical environment, the Regulations bite; where small canisters are sold for use in a whipped cream gun, they do not.
It is easy to see that the authorities now have a problem on their hands. A substance capable of causing the terrible effects detailed above, so potent that ancillary exposure to it in a controlled medical environment is cause for serious concern, is not controlled under the relevant legislation developed at European level due to the need to prove ‘intention’ for use. The market for N2O is filled with suppliers selling cream gun kits and ‘crackers’ (small devices ostensibly used for the safe discharge of unwanted canisters) alongside other ‘legal highs’ and alcoholic beverages.
So, does any part of the UK’s regulatory system restrict the selling of N2O?
The General Product Safety Regulations 2005 (GPSR) make it an offence to place unsafe products on the market but only where said product is not the subject of specific regulatory control. As medical N2O is controlled under the HMR, the GPSR would only apply to N2O sold for non-medical uses. As a propellant used for producing whipped cream, N2O is perfectly safe when handled correctly, although it is highly flammable. When N2O is sold for inhalation by an individual, N2O is not safe; but no one sells N2O for that purpose. Trying to impute this additional level of knowledge into the mind of the supplier is difficult, especially when many transactions take place on-line.
Similarly, the Intoxicating Substances Supply Act 1985 makes it an offence to supply someone under the age of 18 (but says nothing of supplying to adults) a substance that the supplier knows or has reasonable cause to know will be inhaled for the purpose of causing intoxication. Again, proving the state of knowledge of the supplier is difficult; highlighting that this piece of legislation was enacted in a pre-internet age.
The one exception to the above mass of regulatory failure is the Licensing Act 2003; controlling not N2O, but rather the sale of alcohol and the provision of (amongst other things) both recorded and live music. This will have no effect on the sale of cream gun equipment and the subsequent inappropriate consumption of N2O in any unlicensed premises, but it could have a dramatic effect on the willingness of operators of licensed premises to permit customers to bring N2O into their establishments. The Licensing Act creates the offence of carrying on (or knowingly allowing the carrying on) of licensable activity (selling alcohol for instance) other than in accordance with a licence. When granting or reviewing a licence under the Licensing Act, a Council could add a condition prohibiting the use of N2O on the premises. Breach of such a condition could lead to a £20,000 fine or 6 months in prison or both!
An honourable mention goes to the Psychoactive Substances Bill (currently working its way through the House of Lords) as this has been lofted as the answer to todays blight of legal highs. Sadly, a swing and a miss when it comes to N2O. For legislation to have teeth it needs to form the basis for an offence and the relevant offence within the Bill as it stands states:
“(d) the person knows, or is reckless as to whether, the psychoactive substance is likely to be consumed by the person to whom it is supplied, or by some other person, for its psychoactive effects.”
It is unlikely to be a requirement of anyone wishing to purchase N2O canisters that they provide a photograph of themselves holding their whipped cream gun!
In conclusion, we are a long way from seeing N2O become a prohibited substance. Given its lawful uses, it is hard to see how such a prohibition could be implemented. What is highly probable is that we will see the already hard-pressed licensed trade coming under further pressure to police the citizens of this country when central government cannot find an effective lawful alternative.
For further information please contact Marcus Lavell on 0117 906 9452.
 Centres for Disease Control and Prevention publication at http://www.cdc.gov/niosh/updates/94-118.html