Ballooning panic around nitrous oxide helps no one

The Government’s crackdown on the recreational supply or use of nitrous oxide seems at odds with research ranking it the least-harmful common drug in Aotearoa New Zealand.
As drug harm researchers, we are concerned the Government’s change in approach is not backed by sufficient corresponding evidence to show recreational use of the drug is creating high levels of harm in the community.
How is nitrous oxide used?
Nitrous oxide (N2O) is a gas, which when inhaled, creates short-lived feelings of euphoria and dissociation.
It is purchased in various sized cannisters, primarily small metal ‘bulbs’ (colloquially called ‘nangs’) that are sold commercially for use in whipped cream dispensers.
Among New Zealand Global Drug Survey respondents, 3.3 percent report past-year nitrous oxide use, and use is highest in younger age groups.
Both acute and chronic harms can occur from nitrous oxide use.
Acute harms may include falls, cold burns, or asphyxia if higher-risk practices are used, while chronic use can lead to spinal cord damage and permanent disability due to long-term inactivation of vitamin B12.
These instances of chronic harm are rare but severe, and recent cases have led to increased public attention being paid to nitrous oxide.
However, many people who use it do not experience any harm.
A 2023 Otago study published in Journal of Psychopharmacology ranked  nitrous oxide as the least-harmful common drug in Aotearoa.
The fact it is routinely given by medical providers to women in labour is clear evidence of a level of acceptable use.
We can see no clear evidence of widespread and increasing harm from nitrous oxide use in Aotearoa at a population level.
So, what is the latest change all about?
On September 22, Medsafe changed its advice on the law relating to the sale and supply of nitrous oxide, and offered an alternative interpretation of the law around the drug.
Medsafe now advises that when it’s sold for the purpose of inhaling for recreation, the Psychoactive Substances Act 2013 applies, making selling for this purpose illegal (as no nitrous oxide products are approved).
But prior guidance had already clarified that selling for inhalation was illegal without prescription under the Medicines Act 1981.
The penalty for selling an unapproved substance under the Psychoactive Substances Act “is a term of imprisonment not exceeding two years for an individual or a fine not exceeding $500,000 for a company” – a major difference when compared to the six months imprisonment or maximum fine of $40,000 under the Medicines Act.
The suggestion that this clarification will ‘enable’ police by shifting enforcement power is also troubling, given we know this plays out in racist ways against Māori, as evidenced by the inequitable rates of prosecutions of Māori after the passing of the 2019 Discretion Amendment.
Of course, determining ‘intended use’ is the major sticking point, given nitrous oxide is used in medicine, food preparation, performance vehicles, and as a recreational drug.
How can a retailer determine ‘intended use’?
It may be difficult, if not impossible, for retailers to be able to accurately determine how customers intend to use nitrous oxide.
Adding to the confusion is the fact that Medsafe has indicated that good faith attempts by retailers to try to discern intent will not protect them from being held responsible for supply for recreational use.
This confusing directive will likely lead to bias in the refusal to sell to certain customers.
This strategy is likely to reduce supply of nitrous oxide, as businesses will reconsider selling it now that the potential penalties have significantly increased.
While this may sound like a positive, greater criminalisation of nitrous oxide is likely to increase harms.
We may see increasing diversion from catering businesses, or supply shifts into the unregulated black market, making nitrous oxide  riskier to purchase and pushing consumers further into the shadows.
This strategy will also likely increase the involvement of organised crime, which increases harms in other areas.
This ‘clarification’ actually muddies things considerably, and is further evidence of the Frankenstein, outdated, and convoluted nature of our national drug policy.
It’s clear that some products pose a higher risk to consumers, such as larger cannisters that can hold up to 2kg of nitrous oxide.
Similarly, there are some retailers who sell to minors. By removing specifically these products and enforcing age restrictions appropriately, much of the harms can be reduced.
Those who choose to use nitrous oxide recreationally can do so in a way that minimises potential harms, and vegans and those with health conditions should be more cautious due to the above-mentioned issue with Vitamin B12.
What do we think should happen?
It is disheartening that despite a lack of evidence that nitrous oxide is causing widespread harm, the Government has sought to reinterpret policy.
Drug policy, in order to be effective, has to be evidence-based. It is unclear to us what, if any, evidence was sought and considered before the Government decided that action was required on the empirically least-harmful drug in Aotearoa.
We only need to look to the UK to see how adopting what we believe are fear-based, prohibitionist policies amplifies rather than meliorates drug harms. We can and should learn from these policy failures and do better.
Combined with the recent  Government decision on tobacco tax policy that has seen Associate Minister of Health Casey Costello’s links to the tobacco industry scrutinised by health researchers, this decision would be merely laughable if not for the real consequences and harms we believe  it will produce.
And let’s be clear, these harms would not occur if a more sensible policy approach were adopted.
Rather than doubling down on failed prohibitionist ideology, more rational heads should prevail.
It does the public a huge disservice to heighten concern around nitrous oxide when there are many issues of greater importance on which limited resources would be better spent on educational and harm-reduction measures, for example increased funding for drug-checking services and provision of naloxone for overdose prevention.
Jai Whelan (Ngāi Te Rangi) is an Assistant Research Fellow in the Department of Population Health at the University of Otago, Christchurch. Taylah John is a Masters student in the Department of Psychology at the University of Otago, Dunedin. Dr Rose Crossin is a senior lecturer in the Department of Population Health at the University of Otago, Christchurch. Dr Ryan Ward is a senior lecturer in the Department of Psychology at the University of Otago, Dunedin.