Nitrous Oxide - background information

Background information on Nitrous Oxide

15 April 2005

The Ministry of Health administers the Medicines Act 1981, and as part of its administration of that Act, issues this statement relating to sales of nitrous oxide (or N2O).

N2O is a prescription medicine under the Medicines Act through its being declared a prescription medicine in the First Schedule of the Medicines Regulations 1984. The classification of N2O as a prescription medicine occurred in the year 2000.

Once a substance is listed as a prescription medicine, section 18 of the Act prohibits retail sale unless by prescription (and subject to further conditions). There are exceptions to section 18 in sections 25, 27, and 30-33 of the Act, but none of these are relevant to the sale of N2O for “highs”. Regulations can also be made to permit or otherwise place conditions on the retail sale of prescription medicines. No such regulations have been made to date in relation to N2O.

The relevant part of section 18 in relation to the retail sale of N2O is set out below:

Section 18 - Sale of Medicines by retail

(1) Except as provided in sections 25, 27, and 30 to 33 of this Act, or as may be permitted by regulations made under this Act, no person shall in the course of business carried on by that person, sell by retail or supply in circumstances corresponding to retail sale, or distribute by way of gift or loan or sample or in any other way,-

(a) any prescription medicine unless:

(i) The medicine is sold, supplied or distributed by a pharmacist in a pharmacy or hospital; or

(ii) The medicine is supplied in accordance with a standing order by a person who is authorised to supply and administer any specified class or description of prescription medicine under that standing order; or ….

(2) No person may sell by retail any prescription otherwise than under a prescription given by a practitioner, registered midwife, veterinarian, or designated prescriber.

N2O is used in the catering and food industry as a propellant. The New Zealand (Australia New Zealand Food Standards Code) Food Standards 2002 allows N2O to be used as an additive in processed foods. It also has legitimate industrial uses.

The Ministry’s concern is the use of N2O as an inhalant. This use will be the focus of possible prosecutions.

The Ministry intends to clarify the position in relation to N2O’s other uses through making new regulations for that purpose.

It is also necessary to point out that s 17 of the Medicines Act prevents the wholesale sale of medicines unless in accordance with a licence issued under the Medicines Act. Again regulations can be made permitting other kinds of wholesale sales.

Under section 43 of the Medicines Act (restrictions on possession of prescription medicine) those who purchase N2O are also liable to prosecution, if they possess the medicine without reasonable excuse.

Related information

Time's up for sham sales of laughing gas (Hon Jim Anderton media release 26 June 2005)
Grace period for retailers of NOs to prepare for law change is now over - prosecutions can now be taken.

NOS illegal without prescription: no ifs, no buts, no maybes (Hon Jim Anderton, media release 14 May 2005)
First meeting held today on enforcement and publicity around NOS being illegal.

Website feedback
We welcome your feedback on this website.