REPORT TO COUNCIL
SUBJECT
Title
Informational Report on the Proposed Citywide Prohibition on the Sale of Nitrous Oxide products
Report
BACKGROUND
Nitrous oxide, commonly known as “laughing gas,” is a colorless, nonflammable gas used by health care professionals as a mild sedative and pain-relieving agent. It acts quickly and its effects generally wear off soon after administration, which makes it well suited for short medical and dental procedures. Nitrous oxide also has established culinary, automotive, and industrial applications. When administered appropriately under the supervision of a licensed professional, nitrous oxide is considered safe and effective.
Concerns have grown in recent years regarding the recreational misuse of nitrous oxide, particularly among teens and young adults. Rather than being used for a legitimate medical or culinary purpose, the gas is intentionally inhaled to produce a brief feeling of euphoria or intoxication. Products associated with this pattern of use are frequently sold in canisters, offered in flavors such as fruit, candy, or dessert, and packaged with colors that appeal to young consumers.
Recreational misuse of nitrous oxide can result in serious health consequences. Immediate effects may include dizziness, fainting, loss of coordination, low blood pressure, oxygen deprivation, and, in severe cases, loss of consciousness or other life-threatening complications. Frequent or prolonged misuse may cause neurological damage, including numbness or tingling in the hands and feet, muscle weakness, difficulty walking, cognitive impairment, and other potentially lasting health effects. Impaired driving associated with nitrous oxide use is an additional public safety concern.
Although nitrous oxide has legitimate medical, dental, food-service, and commercial uses, the historical propensity for misuse of the product has necessitated federal and state regulations on its possession, sale, and use. The Food and Drug Administration allows nitrous oxide for medical and culinary use only. In California, state law restricts the possession and use of nitrous oxide for the purpose of intoxication and prohibits furnishing nitrous oxide under specified circumstances, including certain sales or distributions involving minors or when the seller knows or should know that the substance will be used for intoxication. These restrictions are intended to preserve legitimate uses of nitrous oxide while reducing its recreational misuse and associated public health and safety risks. Currently, both federal and state lawmakers are considering new regulations relating to nitrous oxide consumer products (HR 7945 and SB 936).
As of the time of this report’s drafting, SB 936 has been enrolled, but not (yet) signed by the Governor. In short, SB 936 does the following:
• Prohibit the sale and distribution of a nitrous oxide container that can hold more than 8 grams of nitrous oxide or from which an individual may directly inhale nitrous oxide.
• Prohibit the sale and distribution of a nitrous oxide product that has, or is marketed as having, the taste or smell of any food.
• Prohibit knowingly selling or distributing a device that allows an individual to inhale nitrous oxide from the container or hold nitrous oxide for the purposes of inhalation.
• Prohibit a person that is engaged in the business of selling cigarettes or tobacco products in this state from possessing, storing, owning, or selling nitrous oxide at any site where cigarettes and tobacco products are stored or sold
• The enforcing department is the California Department of Tax and Fee Administration (CDTFA)
• Violations are punishable as an infraction, with monetary penalties ranging from $1,000 to $10,000 depending on the severity of the violation and frequency of the violations. The inventory will be seized, and the CDTFA can take action to suspend or revoke a business license.
• State law does not expressly limit the authority of a city to adopt or enforce a local ordinance that further restricts the sale, furnishing, offering, or distribution of nitrous oxide
• Any person, distributor, or business found to have violated these prohibitions is liable for all reasonable costs incurred by a public agency in the investigation, inspection, seizure, storage, transportation, handling, venting, abatement, disposal, or destruction of nitrous oxide products, nitrous oxide containers, inhalation devices, or related materials
The proposed City of Santa Clara ordinance provides for the potential for criminal penalties as well as nuisance abatement actions against the location of the illegal sale and revocation of the local business license.
DISCUSSION
The proposed ordinance responds to the increasing availability of nitrous oxide (N₂O) cartridges, canisters, cylinders, dispensers, and similar products at local retail establishments. These products are readily available for purchase at smoke shops, convenience stores, and other retail businesses, raising concerns regarding their potential misuse for recreational intoxication, particularly among young adults.
Retail availability and prominent store display of nitrous oxide products may increase access to products that can be intentionally inhaled for their intoxicating effects, which is inconsistent with the intended medical, culinary, automotive, and industrial uses of the substance.
The proposed ordinance is intended to protect the public health, safety, and welfare by limiting retail access to nitrous oxide products that may be readily misused for intoxication.
The ordinance would make it unlawful to sell, offer for sale, distribute, or otherwise provide nitrous oxide, nitrous oxide dispensers, or cartridges, canisters, cylinders, or similar devices containing nitrous oxide, except for specifically exempted lawful uses.
The ordinance includes exemptions intended to preserve legitimate commercial, medical, culinary, automotive, and industrial uses. Exemptions include certain food products and sales or uses involving pharmacies, licensed physicians and dentists, wholesalers, restaurants and other qualifying food-service operations, and industrial gas manufacturers and merchants.
These exemptions would allow legitimate use of nitrous oxide to continue. Grocery and retail stores could continue selling commercially packaged aerosol whipped cream; physicians and dentists could continue administering nitrous oxide in connection with patient care; restaurants and other qualifying food-service establishments could continue purchasing and using nitrous oxide and appropriate dispensing equipment for culinary purposes, such as preparing whipped cream; and qualifying businesses could continue selling or using nitrous oxide for legitimate automotive, manufacturing, and industrial applications.
By distinguishing between legitimate uses and general retail availability, the proposed ordinance seeks to reduce access to nitrous oxide for recreational intoxication while minimizing impacts on businesses and professionals that use the substance for lawful purposes.
Enforcement of Ordinance
Pursuant to SCCC Section 1.05.070, the City of Santa Clara, in its prosecutorial discretion, may enforce any violation of the provisions of this ordinance through criminal, civil, and/or administrative action.
Criminal Enforcement: Any person who violates a provision of the ordinance may be guilty of a misdemeanor, subject to the applicable penalties provided by the Santa Clara City Code and State law.
Administrative Citations and Penalties: Administrative citations issued pursuant to the ordinance shall be subject to the following penalty structure:
1. Five hundred dollars ($500.00) for a first violation.
2. One thousand dollars ($1,000.00) for a second violation and for each additional violation occurring within one year of the immediately preceding violation.
Public Nuisance: Any violation of the Ordinance is declared to constitute a public nuisance and shall be subject to all applicable civil, administrative, and criminal remedies and penalties available under this City Code and State law, including, but not limited to, abatement and injunctive relief.
Business License or Permit Revocation: Any violation of the ordinance shall constitute good cause for the revocation of an applicable business license or permit in accordance with Chapter 2.115 SCCC.
Community Outreach
The City is developing an outreach and communications plan to inform businesses, residents, and the broader community about the proposed prohibition.
Following City Council discussion of the proposed ban and direction to continue exploring its potential implementation, City staff will undertake the following outreach activities prior to Council consideration and approval. These efforts are intended to increase public awareness, provide educational resources, gather stakeholder input, and prepare affected businesses and the community for potential implementation and compliance requirements.
Communications and Outreach Tasks:
1. City Webpage: Develop a dedicated City webpage containing information regarding the Nitrous Oxide Ban, including an overview of the regulations, a Frequently Asked Questions (FAQ) section, the adopted ordinance, effective dates, enforcement information, and relevant City contact information.
2. Direct Mailer: Distribute an informational postcard to businesses holding active City of Santa Clara business licenses. The postcard will provide an overview of the Nitrous Oxide Ban, identify key requirements and effective dates, and direct businesses to the City webpage for additional information and resources.
3. Email Campaign: Distribute informational notices through the City’s GovDelivery system to City news subscribers and Santa Clara business licensees. Communications will provide information regarding the Nitrous Oxide Ban, applicable requirements and implementation timelines, and links to the City webpage and other educational resources.
4. Regional and Community Partner Outreach: Coordinate with regional and community partners, including the County of Santa Clara and the Silicon Valley Central Chamber of Commerce, to broaden awareness of the Nitrous Oxide Ban and assist with disseminating information to businesses and community stakeholders.
5. Ongoing Education and Compliance Outreach: Following implementation, continue providing educational information and responding to questions from businesses and community members to promote voluntary compliance prior to and during enforcement of the ordinance.
ENVIRONMENTAL REVIEW
This is an information report only and no action is being taken by the City Council and no environmental review under the California Environmental Quality Act ("CEQA") is required.
FISCAL IMPACT
There is no significant fiscal impact to the City associated with the proposed outreach efforts beyond existing staff time. Minimal costs are anticipated for the preparation, printing, and distribution of informational mailers to businesses.
PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk’s Office at (408) 615-2220, email clerk@santaclaraca.gov or at the public information desk at any City of Santa Clara public library.
RECOMMENDATION
Recommendation
It is recommended that the City Council receive the staff report regarding the proposed citywide Nitrous Oxide Ban, receive and consider public comment, and provide additional direction and feedback to staff for incorporation into the proposed ordinance and possible return to the City Council for further action.
Staff
Reviewed by: Aimee Escobar, Management Analyst, City Manager’s Office
Approved by: Jovan D. Grogan, City Manager
ATTACHMENTS
1. Draft Ordinance of the City of Santa Clara, California - New Chapter 8.38 - Nitrous Oxide to Title 8 - Health & Safety Prohibiting the Sale of Nitrous Oxide