The laughing gas verdicts represent a failure of Britain’s drug policy | Harry Sumnall

The opportunity is being missed to license lower-risk substances like nitrous oxide. Instead, users are being directed towards more harmful drugs

• Harry Sumnall is professor in substance use at the Public Health Institute, Liverpool John Moores University

The Psychoactive Substances Act 2016 was designed to provide a blanket ban on new psychoactive substances (popularly, although erroneously, known as “legal highs”), as the existing legislation was considered too slow in responding to the emergence of what are potentially harmful drugs. A substance is defined as psychoactive if “by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state”. So all psychoactive drugs are, by default, controlled under the 2016 ban.

A number of substances were exempted from the act, including caffeine, nicotine, tobacco products, alcohol, EU approved foodstuffs, medicinal products, and drugs already controlled under the Misuse of Drugs Act 1971. The exemptions were deemed necessary to avoid restricting access to medically useful and socially tolerated products.

These exemptions played a key role in two recent trials involving the supply of nitrous oxide (“laughing gas”), where the judges advised the juries to reach not guilty verdicts. The defence teams successfully argued that nitrous oxide – despite being a popular recreational drug, and assumed to be controlled under the 2016 act – is covered by the medicinal product exemption.

These court decisions came as a surprise: while nitrous oxide is clearly a medicinal product under supervised use as an anaesthetic, there is unlikely to be much legitimate need for it in recreational settings. As Rudi Fortson QC, an expert in drug law, highlights in his blog, the European court of justice judged in 2014 that synthetic cannabinoids (another set of new psychoactive substances, (NPS), often known as Spice) could not be designated as medicinal products in a defence where this was not in the context of recognised therapeutic use.

Most other recreationally used “medicinal products” are already controlled under the 1971 act, so it’s unlikely that many other arguments for product exemption that don’t involve nitrous oxide will be heard. These cases have brought many other weaknesses of the 2016 act into focus.

From a psychopharmacological perspective, the term “psychoactivity” was simplistically defined, and is difficult to assess without an expensive testing system. The act also problematically assumed that psychoactivity itself should be cause for concern rather than the actual or potential harms produced by individual drugs, which was counter to the principles of previous UK and international drug law.

The formal assessment of the 2016 act is expected in late 2018, so we don’t yet know whether it has been successful in reducing the use and harms of new psychoactive substances. These products have always been less popular than media headlines would lead us to believe, but the Office for National Statistics recently reported that NPS deaths are currently at their highest ever levels, with 123 reported in 2016 (compared with more than 2,000 opiate deaths). Six months after the introduction of the 2016 act the Home Office reported more than 500 arrests, and that most high-street retailers and clearnet – unencrypted – websites had stopped selling them.

This act is seen by the Home Office as a landmark piece of legislation, helping to underpin its global drug enforcement activity. Rather than abandoning the 2016 act completely in response to these verdicts, as some drug policy reformers hope, a more likely outcome is a change to the act’s wording to reflect the intent of psychoactive drug use and the therapeutic benefits of medicinal products.

The 2016 act was a missed opportunity to take a different perspective on drugs. It is difficult to argue against tight legal restrictions placed on some NPS. However, their rise presented an opportunity to think about drug policy more broadly, whereby lower-risk products such as nitrous oxide could be licensed and made available in a legally regulated market.

Drug policy should not be entirely determined by scientific evidence on harms – what’s also important is how society conceptualises and tolerates different types of risk behaviour, and how culture and history interact with policy priorities.

However, it is still striking that people in the UK who wish to legally alter their states of consciousness through psychoactive drug use have little legal choice, and are directed by drugs policy towards some of the most harmful drugs available.

• Harry Sumnall, professor in substance use at the Public Health Institute, Liverpool John Moores University, is a member of the government’s Advisory Council on the Misuse of Drugs. This piece represents his personal opinion only

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