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  • Tess McCarthy

Nitrous Oxide: Changes in the Law

Updated: Feb 2

“Controlled drugs” are those classified by Misuse of Drugs legislation and are given a ‘class’ on a scale of harmfulness from A to C.


Nitrous Oxide, also known by various other labels such as NOS, laughing gas, whippet, balloons, and nangs to name a few, has recently been in the spotlight when it comes to controlled drugs.


Is Nitrous Oxide legal to possess?


Previously, Nitrous Oxide was not a controlled substance, in that it had not been classified under the Misuse of Drugs Act 1971 (“MDA”). Although it was illegal to produce, supply, import and export the drug, it was not illegal to possess.


However, on 8 November 2023, Nitrous Oxide was given class C status and is therefore now a controlled drug under the MDA and therefore illegal to possess.


What if I have Nitrous Oxide for a legitimate reason?


With the exception of legitimate uses for the substance, such as in healthcare as an anesthetic; in kitchens as a preservative or propellant for things such as whipped cream; or in mechanics, it is now illegal to possess.


If you have a legitimate – and therefore legal – excuse for possessing the drug, you are likely to be able to produce evidence to demonstrate this quite easily when questioned and would be able to prove you are not committing an offence. Note that you are not required to carry a licence to possess the substance for a legitimate reason, but showing a legitimate reason might require production of employment details or contact with your employer for example.


In circumstances where a legitimate excuse is properly established, you will not be committing an offence under the MDA.


How would police prove why I had the Nitrous Oxide?


The first port of call would be to ask you why you had the substance.


Police will also look at the surrounding circumstances to determine the purpose of the possession. If arrested, they will interview you for your account and may seize your mobile phone and other possessions to assess whether any light can be shed on the question of what you intended to do with the substance.


When used illegally, Nitrous Oxide is often discharged into a balloon and then inhaled. It is important to bear in mind that, as with other drugs, possession alongside paraphernalia – such as balloons – suggesting the intended use is illicit will harm your case if you claim to have it for a legitimate reason.


If you have the substance for legitimate purposes and you explain these to police, they will have to make enquiries to establish this.


What could I be sentenced to for possessing Nitrous Oxide now that it is a controlled drug?


A conviction for possession of Nitrous Oxide can carry a maximum of up to two years’ custody, a Community Order, and/or a financial penalty.


Is there any point in getting a solicitor if I am arrested for possessing Nitrous Oxide?


Whether or not you are guilty of the offence, it is always advisable to get a solicitor. They may be able to advise you how best to prove a legitimate reason for possessing the substance, advise you on the law relating to your particular circumstances, or simply inform you as to your options going forward. Given the potential penalties if convicted for possession of Nitrous Oxide, it is always in your best interests to receive full and frank advice from a legal professional throughout your case.


Legal disclaimer: Articles are intended as an introduction to the topic and do not constitute legal advice. The information contained herein is accurate at the date of publication but please note that the law is ever changing and evolving. If you require advice in relation to any matter raised in this article please contact a member of the team.


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