HomeMy WebLinkAbout10 PROPOSED ORDINANCE NO.1572 REGULATING THE SALE OF NITROUS OXIDEDocusign Envelope ID: 7573C612-77F6-4535-B95E-2F8B74E33879
. . . . . . . AGENDA REPORT
MEETING DATE
TO
• 1/
OCTOBER 21, 2025
ALDO E. SCHINDLER, CITY MANAGER
DAVID KENDIG, CITY ATTORNEY
JASON MCEWEN, ASSISTANT CITY ATTORNEY
Agenda Item 10
Initial
Reviewed:
City Manager QJ
Finance Director
SUBJECT: PROPOSED ORDINANCE NO. 1572 ADDING CHAPTER 11 TO ARTICLE
6 OF THE TUSTIN CITY CODE REGULATING THE SALE OF NITROUS
OXIDE
SUMMARY:
The City Attorney's office has prepared proposed amendments to the Tustin City that
would ban the sale, distribution, and advertisement for sale of nitrous oxide intended for
recreational purposes within the City.
The proposed ordinance would ban the sale, distribution, and advertisement for sale of
nitrous oxide, devices designed to dispense nitrous oxide, and any device which contains
any amount of nitrous oxide, except for specified medicinal or industrial purposes. The
purpose of the ordinance is to protect the public health and welfare against the sale and
distribution of products which can cause serious and potentially life -threatening health
complications such as low blood pressure, low oxygen, fainting, heart attack, and nerve
damage, as well as long term effects such as increased risk of depression, psychosis,
memory loss, muscle spasms, tinnitus, numbness, weakened immune system, and birth
defects (if used during pregnancy).
RECOMMENDATION:
Introduce and conduct first reading by title only of Ordinance No. 1572 adding Chapter
11 (Sale and Distribution of Nitrous Oxide) to Article 6 (Public Welfare) of the Tustin City
Code and schedule the adoption for the City Council's next scheduled regular meeting.
FISCAL IMPACT:
Minimal fiscal impact associated with efforts to enforce the prohibition by the City's code
enforcement and/or law enforcement personnel.
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CORRELATION TO THE STRATEGIC PLAN:
Tustin's Strategic Plan Goal A: Economic and Neighborhood Development calls for the
City to "enhance the vibrancy and quality of life in all neighborhoods and areas of the
community." Goal B: Public Safety and Protection calls for the City to "Ensure Tustin is
an attractive, safe and well -maintained community in which people feel pride."
BACKGROUND AND DISCUSSION:
From 2023 to 2024, the number of incidents to which the Tustin Police Department
responded which involved nitrous oxide rose by 314%. Arrests stemming from incidents
involving nitrous oxide rose 422% over that same time period. Crime statistics for the first
9 months of 2025 suggest that those numbers will once again be on the rise this year.
Thus, a need for local regulation of sale of nitrous oxide products exists which warrants
adoption of the proposed ordinance.
Nitrous Oxide is a colorless, odorless gas which is traditionally used in legitimate settings
such as in medical and dental offices, in automotive applications, and in industrial food
applications. However, despite state laws regulating nitrous oxide, which is also known
as "laughing gas," "nox," "nos," "galaxy gas," and "whippits," legal gaps exist which have
resulted in the continued sale and use of these products for recreational purposes.
Currently, California Penal Code section 381 b prohibits the possession of nitrous oxide
products with the intent to inhale those products to become intoxicated. Section 381 c
makes it unlawful to sell nitrous oxide products to persons under the age of 18. Section
381 a requires retailers who sell nitrous oxide products to maintain records of all sales.
And finally, section 381 d makes it a crime to knowingly sell nitrous oxide to a person who
intends to use the product to inhale it and provide for greater penalties if the consumer's
use of the product results in great bodily injury or death.
Despite these state regulations, the low cost of nitrous oxide products, coupled with a
lack of local regulation, has led to increased misuse of these products. This proposed
ordinance seeks to address these issues by reducing unlawful access and discouraging
unlawful sales practices.
The proposed ordinance would add Chapter 11, to Article 6 of the Tustin City Code. The
new chapter would make it unlawful for any individual or business to sell, distribute, or
offer for sale, any nitrous oxide product, any devise used to administer nitrous oxide, or
any device containing any amount of nitrous oxide except in limited circumstances. These
exceptions from the general prohibition will allow for continued wholesale of nitrous oxide
products when sold for legitimate medical, dental, and industrial purposes. These include:
• Products in which nitrous oxide is used as a propellant for food items (e.g. whipped
cream canisters).
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• Wholesale transactions in which the seller does not know or have a reason to
believe that the product will be used for recreational purposes.
• Medical or dental applications when used pursuant to state law and under the
supervision of licensed medical or dental practitioners.
• Sales by pharmacists, pharmacy interns, or licensed wholesalers in accordance
with state law.
• Products in canisters specifically designed for use in automotive applications.
In the event the City Council approves the proposed ordinance, staff will implement a
notice campaign to businesses in the City, including but not limited to social media posts
and emailing of informational flyers to licensed businesses, to alert them to the new
restrictions on the sale, distribution, and advertisement of nitrous oxide products.
Violations of the proposed ordinance would be punishable pursuant to the General
Penalty provisions of the Tustin City Code. (Tustin City Code sections 1121, 1122, 1123
and 1162) Specifically, at the discretion of enforcement officers and/or the City Attorney,
a violation of the ordinance could be cited as a criminal misdemeanor or infraction offense,
abated by civil action, and/or be subject to issuance of civil administrative citations.
AttarhmPnt-
1. Ordinance 1572 adding Chapter 10 (Sale and Distribution of Nitrous Oxide) to
Article 6 (Public Welfare) of the Tustin City Code.
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ORDINANCE NO. 1572
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUSTIN, CALIFORNIA, ADDING CHAPTER 11 (SALE AND
DISTRIBUTION OF NITROUS OXIDE) TO ARTICLE 6
(PUBLIC WELFARE) OF THE TUSTIN CITY CODE.
The City Council of the City of Tustin does hereby ordain as follows:
SECTION 1. The City Council finds and determines as follows:
A. The City of Tustin ("City") is empowered pursuant to California Constitution, Article
XI, Section 7, to make and enforce within its jurisdiction all local, police, sanitary,
and other ordinances and regulations not in conflict with general laws.
B. California Health & Safety Code section 101450 empowers the City Council to take
measures necessary to preserve and protect the public health, including adopting
ordinances, regulations, and orders that are not in conflict with general laws.
• Nitrous oxide is a colorless, odorless chemical that is used in legitimate medical
and dental settings, as well as for industrial purposes such as the automotive
industry and as a propellant for food products. Nitrous oxide is sometimes referred
to colloquially as "whippit," "laughing gas" or other terms.
C. Despite state laws which make it illegal to possess or be under the influence of
nitrous oxide for purposes of recreational use, such use has increased significantly
in recent years.
D. This trend has been seen in the City of Tustin which has seen increases in nitrous
oxide related incidents and arrests since 2023. Since that time, the Tustin Police
Department has been involved in 54 cases related to nitrous oxide, resulting in 75
arrests. In 2023, the Department responded to seven (7) such incidents and made
nine (9) arrests. Those numbers increased to 25 cases and 38 arrests in 2024.
This represents an increase of 314% in the total number of nitrous oxide incidents,
and a 422% increase in arrests associated with the chemical from 2023 to 2024.
With the Department responding to 22 cases resulting in 28 arrests in the first nine
months of 2025, those annual numbers are expected to increase yet again.
E. According to the Cleveland Clinic, recreational use of nitrous oxide can cause
serious and potentially life -threatening health complications such as low blood
pressure, low oxygen, fainting, heart attack, and nerve damage. Long term users
of recreational nitrous oxide have an increased risk of depression, psychosis,
memory loss, muscle spasms, tinnitus, numbness, weakened immune system,
and birth defects if used during pregnancy.
(https://my.clevelandclinic.org/health/treatments/nitrous-oxide-laughing-gas)
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F. Regulatory gaps regarding the possession, use, and sale of nitrous oxide have
resulted in continued local availability of these products which, in turn, can lead to
persistent misuse.
G. The City desires to regulate the sale of nitrous oxide in order to preserve and
protect the public health and to provide a means for the City to take action against
retailers that would sell nitrous oxide products for purposes other than legitimate
medical, dental, or industrial use.
SECTION 2. New Chapter 11 (Sale and Distribution of Nitrous Oxide) is hereby added to
Article 6 (Public Welfare) of the Tustin City Code to read as follows:
CHAPTER 11 — SALE AND DISTRIBUTION OF NITROUS OXIDE
6940 — DEFINITIONS
The following words, terms, and phrases when used in this chapter shall have the
meanings ascribed to them in this section, except when the context clearly indicates a
different meaning:
(1) "Device" means any cartridge, compressed gas cylinder, apparatus, container,
balloon, attachment, nozzle, or other object used to contain, dispense, or
administer nitrous oxide.
(2) "Distribute" means to furnish, give away, exchange, transfer, deliver, or supply,
whether or not for monetary gain.
(3) "Nitrous Oxide" means any of the following: N20, dinitrogen monoxide, dinitrogen
oxide, nitrogen oxide, or laughing gas, and includes products containing any of
those substances, including those described as NOS, NOX, galaxy gas, and
whippits.
(4) "Person" means any individual or legal entity, however constituted or organized.
(5) "Sell" or "sale" means to furnish, exchange, transfer, deliver, or supply for monetary
gain.
(6) "Wholesale capacity" means the sale or distribution of nitrous oxide or a device to
dispense nitrous oxide to a person who will use nitrous oxide or the device in
certain services or products for resale, including but not limited to, commercial sale
of dentistry supplies to dentists or dentistry offices, commercial sale of devices for
use in food production or in a commercial kitchen, and/or commercial sale of
nitrous oxide for the purpose of producing food products for commercial sale (e.g.,
whipped cream canisters).
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6941 — PROHIBITION ON THE SALE OR DISTRIBUTION OF NITROUS OXIDE
Except as otherwise authorized by law or allowed under this chapter, it is unlawful
for any person to sell, attempt to sell, offer, distribute, or otherwise provide to any person
nitrous oxide, a device to dispense or administer nitrous oxide, or any device that contains
any quantity of nitrous oxide.
6942 — EXCEPTIONS TO PROHIBITION
This chapter does not prohibit the sale, attempted sale, distribution, or other
manner of providing nitrous oxide, or a device to dispense or administer nitrous oxide, in
the following circumstances:
(a) If the nitrous oxide is contained in a device containing a food product where the
nitrous oxide is used for purposes of serving as a propellant. Nitrous oxide itself
is not a "food product" for purposes of this exception.
(b) If the nitrous oxide or device is being sold, attempted to be sold, offered, or
distributed in a wholesale capacity, for uses similar to those described in
subsection (6) of section 6940. This exemption applies only in circumstances
when the wholesaler does not know or have reason to know that the recipient
intends to use the nitrous oxide or device in violation of section 6941.
(c) If the nitrous oxide or device that is being sold, attempted to be sold, offered,
or distributed is specifically designed for use in a vehicle to enhance the
performance of the vehicle.
(d) If the nitrous oxide or device is being sold, attempted to be sold, offered, or
distributed specifically for the purpose of providing medical or dental care, by
or at the direction and under the supervision of a medical or dental practitioner
licensed by the State of California and in accordance with all applicable rules
and regulations.
(e) If the nitrous oxide or device is being sold, attempted to be sold, offered, or
distributed by a pharmacist, pharmacist intern, or pharmacy as defined by
California Business & Professions Code sections 4030, 4036, and 4037,
respectively (as may be amended from time to time), in the course of their
duties as a pharmacist or pharmacist intern, or as a wholesaler licensed by the
Board of Pharmacy.
(f) Any other circumstance explicitly exempted under Federal or State law or
regulation.
Notwithstanding the foregoing, any sale or distribution of nitrous oxide, any device
designed to dispense or administer nitrous oxide, or a device containing any quantity of
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nitrous oxide shall comply with all requirements of California Penal Code sections 381 c
and 381 e.
6943 — VIOLATIONS AND PENALTIES
Any violation of this chapter is unlawful and shall be subject to the penalties and
enforcement mechanisms set forth in Chapter 1 of Article 1 of this code.
SECTION 3. Effective Date. This Ordinance shall take effect on the 31st day after its
adoption. The City Clerk or his or her duly appointed deputy shall certify to adoption of
the Ordinance and cause this Ordinance to be published as required by law.
SECTION 4. CEQA Exemption. The City Council finds that this Ordinance is not subject
to the California Environmental Quality Act (CEQA) pursuant to Title 14 of the California
Code of Regulations, Chapter 3, sections 15060, subdivision (c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060, subdivision (c)(3) (the activity is not a project as defined in section 15378 and
by Public Resources Code section 21065) because it has no potential for resulting in
physical change to the environment, directly or indirectly.
SECTION 5. Severability. If any section, Subsection, sentence, clause, phrase or portion
of this Ordinance is for any reason held out to be invalid or unconstitutional by the decision
of any court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council of the City of Tustin hereby
declares that it would have adopted this Ordinance and each section, Subsection, clause,
phrase or portion thereof irrespective of the fact that any one or more sections,
Subsections, sentences, clauses, phrases, or portions be declared invalid or
unconstitutional.
PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin
on this day of , 2025.
AUSTIN LUMBARD, MAYOR
ATTEST:
ERICA N. YASUDA, CITY CLERK
APPROVED AS TO FORM:
FDOcuSigned by:
Z",
DA NDIG, CITYATTORNEY
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STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF TUSTIN )
CERTIFICATION FOR ORDINANCE NO. 1572
Erica N. Yasuda, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
California, does hereby certify that the whole number of the members of the City Council
of the City of Tustin is five; that the above and foregoing Ordinance No. 1572 was duly
passed, and adopted at a regular meeting of the Tustin City Council held on the day
of , 2025, by the following vote:
COUNCILPERSONS AYES:
COUNCILPERSONS NOES:
COUNCILPERSONS ABSTAINED:
COUNCILPERSONS ABSENT:
Erica N. Yasuda, City Clerk
Published:
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