Nitrous Oxide canisters for food use are not a "medicinal product"

Rudi Fortson QC reports that the Court of Appeal has ruled that canisters of nitrous oxide which are not designed for medicinal use are NOT "medicinal products" (within the meaning of the Human Medicines Regulations 2012) for the purposes of the PSA 2016. In an important judgment handed down today by the Court of Appeal (Criminal Division)(England and Wales) – R v Chapman and others [2017] EWCA Crim 319 – the Court held that canisters of nitrous oxide (“nox”, or N2O) designed and intended for food use and not for a medicinal purpose, are not “medicinal products” (within the meaning of the Human Medicines Regulations 2012) for the purposes of the Psychoactive Substances Act 2016.  The result is – Mr Fortson suggests – correct, and it accords with the reasons given in his earlier blog and article on the PSA 2016: see “The Psychoactive Substances Act 2016“, R. Fortson, Criminal Law Review [2016] Crim L R 303.  N2O is used for many commercial purposes (rather than medicinal).  The Court said (at para.32): “The gas no doubt modifies the physiological functions of those who inhale it, but it brings neither short term nor long-term beneficial effects to human health in these circumstances. The canisters in question were in fact manufactured for use unconnected with medical purposes, widely available and distributed for use in catering, which in itself is a strong indicator that they were not medicinal products. Furthermore, the purpose for which it was intended to supply the canisters was purely recreational with nothing whatsoever to do with health. This last feature coupled with the fact that the gas was intended to be used in circumstances which were not beneficial to health, indeed import some risk to health, was sufficient to take it outside the definition of medicinal product whatever label may have been on the boxes in which the canisters were originally packed.”  


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