The Detention and Seizure of Nitrous Oxide

15th Jul 2021

Nitrous oxide, otherwise known as ‘laughing gas’, has become one of the most popular recreational drugs in the UK. However, nitrous oxide is used most commonly in the catering industry and becomes an approved food additive (E942) when used as a propellant for whipped cream.

Alcohol and Tobacco

In order to stop the recreational use of psychoactive substances such as nitrous oxide, the Psychoactive Substances Act (PSA) was introduced in May 2016, criminalising the supply, production, and possession with intent to supply of psychoactive substances. However, this legislative change has caused increasing obstacles for those who import nitrous oxide for legitimate use in the catering industry.

Concerningly, legitimate importers of nitrous oxide are seeing a rise in their goods being seized and detained by HMRC and UK Border Force. Nitrous oxide is liable to forfeiture pursuant to the Customs and Excise Management Act 1979 (CEMA). This can be where the goods are imported in breach of a prohibition imposed by section 12 of the Psychoactive Substances Act (PSA) 2016 or under section 55 where the goods could be consumed by an individual for their psychoactive effects, and the importation is not of an exempted substance or for an exempted activity.

As already outlined, nitrous oxide is an EU approved food additive (E942) and therefore, pursuant to the PSA 2016 can be classed as an exempted substance. The key is to act quickly and prove to HMRC that the nitrous oxide was to be used lawfully in the catering business. Evidence will need to be adduced, including the business/owners’ details, proof of payment/ownership, evidence of customer due diligence and staff training. Customer due diligence should involve verifying a customer’s identification and details, visiting the customers business premises, and seeking a signed customers resellers declaration to ensure the customer intends to use the goods legitimately in the catering industry.

Our HMRC and UK Border Force Litigation team have long-standing experience and success with dealing with law-enforcement and seeing our clients’ goods restored. Most recently, our team has helped a client to restore a consignment of nitrous oxide worth more than €300,000, which was seized when the client was importing the nitrous oxide from Europe. We challenged the legality of the seizure as the goods were to be sold lawfully in the catering industry.

We understand the importance to engage HMRC and UK Border Force immediately to reduce the challenges and financial hardship that our clients could face when their goods are detained or seized. If you have had nitrous oxide or any other goods detained or seized and require assistance, please contact Peter Hastings, a specialist HMRC and UK Border Force solicitor at ph@rogers-norton.co.uk. We can also advise on seeking Injunctions, Judicial Review, Regulatory issued and on Criminal Proceedings, including PACE 1984 and Proceeds of Crime Act 2002.

*This article is provided for general information purposes only and does not constitute legal or any other professional advice.