Who would have thought something as insubstantial as laughing gas would act like a wrecking ball through the new legislation against legal highs? That is exactly what happened recently as two judges; one in Southwark Crown Court and one in Taunton Crown Court, found that it was not illegal to supply nitrous oxide even though it was being used as a legal high.
It has been clear for many years that legislation was required to control the growing use of legal highs. From around 2008, the UK saw the emergence of new substances or products that were intended to mimic the effects of recreational drugs that are controlled under the Misuse of Drugs Act 1971 (ʺthe 1971 Actʺ).
These new substances ‐ together with other substances that have been used as intoxicants for many years (including nitrous oxide) are difficult to identify. Before the enactment of the PSA they had to be regulated on a group by group or even substance by substance basis by adding them to the list of substances controlled by the 1971 Act. However because of their diversity and the speed with which they were developed to replace drugs that had been added to the 1971 Act, the government was stuck playing a legislative version of “whack-a-mole.”
According to the European Monitoring Centre for Drugs and Drug Addiction, 101 new substances were identified in the European Union in 2014, continuing a five year upward trend from 24 in 2009. In the year the PSA came into force 100 deaths in the UK were linked to the psychoactive substances banned by the legislation.
The Psychoactive Substances Act 2016
To tackle this problem, the Psychoactive Substances Act 2016 (“PSA”) was enacted to deal with new psychoactive drugs, so-called legal highs, banning any substance which “by stimulating or depressing a person’s central nervous system… affects the person’s mental functioning or emotional state”.Because many commonly-consumed substances can have a stimulating or depressive effect, there are exemptions in the PSA for alcohol, tobacco, caffeine, food, drink and, importantly, in respect of the cases mentioned above, medicinal products as defined in the Human Medicines Regulations 2012.
The PSA is wide ranging making it an offence to produce, supply, offer to supply, possess with intent to supply, import or export psychoactive substances. The maximum sentence is seven years’ imprisonment. There are also four civil sanctions to enable the police and local authorities to adopt a graded response in appropriate cases.There are wide powers to stop and search persons, vehicles and vessels, to enter and search premises and to forfeit seized psychoactive substances and other items.
So why did two Crown Court judges dismiss the recent cases involving the supply of nitrous oxide?
The problem is that laughing gas, or nitrous oxide, is used to provide pain relief during dentistry and childbirth and is a medicinal product for those reasons. Short term exposure produces a feeling of elation but can also affect mental performance, dexterity and cause general disorientation and dizziness. Long term exposure can lead to vitamin B12 depletion and ultimately to severe nerve damage.
You might have thought that this would have occurred to Parliament when the PSA was being enacted. However, whilst Parliament did specifically consider nitrous oxide when debating the legislation, the discussion related to the use of nitrous oxide in food; as it is a substance which is authorised for use in food under EU legislation: nitrous oxide is authorised by EU legislation for use as a propellant, for example, in whipped cream. As such, it would not constitute a prohibited ingredient when used in that way. However, consumption of nitrous oxide gas from a canister for its psychoactive effect would not fall within the food exemption and therefore would, Parliament thought, constitute a psychoactive substance under the Act and be prohibited.However, there appears to have been no consideration by Parliament of nitrous oxide as a medicinal product.
So when the Crown Court judges were faced with a prosecution relating to the sale of nitrous oxide under the PSA, the judges presumably concluded that since nitrous oxide is a medicinal product, it is exempt from the scope of the PSA irrespective of whether it is being used for prohibited purposes. There is nothing in the PSA relating to exempt substances that would enable a judge to make a distinction between a psychoactive medicinal product being used as a medicinal product or being used for its recreational psychoactive effect.
These recent decisions have created a state of confusion. Firstly, from news reports it appears that 50 people have pleaded guilty to the supply of nitrous oxide under the PSA and these people will no doubt be considering whether to appeal.
The CPS will also have to consider whether to alter its prosecution policy under the PSA as a matter of urgency.Finally, the government may consider a number of legislative solutions to the problem:
- nitrous oxide could be re-classified as a controlled drug under the 1971 Act as happened in 2014 when Lisdexamfetamine, used in “Benzo fury”, was re-classified as a schedule 2 controlled drug. However, it is unlikely that the government would want to reclassify nitrous oxide as a controlled drug given its current use.
- amend the PSA so that the Court can consider whether substances which are ordinarily exempt can be caught by the PSA in certain circumstances, although this may be very difficult to achieve.
- use the power in section 3(4) of the PSA to make regulations to further clarify the exempt substance categories.
Some commentators have said the legislation is simply bad law and should be scrapped, which is no laughing matter given the scale of the legal high problem.Clarification is needed otherwise confusion will continue to persist.
This article was published in Pharmacy Business on 3 October 2017.