HomeMy WebLinkAbout2025-06 - Prohibution of Sale or Distribution of Nitrous OxideORDINANCE N0. 2025-06
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COSTA MESA,
CALIFORNIA, ADDING CHAPTER XVI (PROHIBITION ON SALE OR DISTRIBUTION
OF NITROUS OXIDE) TO TITLE Il (OFFENSES-MISCELLANEOUS) OF THE COSTA
MESA MUNICIPAL CODE TO ESTABLISH REGULATIONS PROHIBITING THE
UNLAWFUL SALE OR DISTRIBUTION OF NITROUS OXIDE IN THE CITY
WHEREAS, the City of Costa Mesa (City) is empowered pursuant to California
Constitution, article XI, section 7 to make and enforce within its limits all local, police,
sanitary, and other ordinances and regulations not in conflict with general laws; and
WHEREAS, Nitrous Oxide is an odorless, colorless chemical that can be inhaled
for legitimate purposes associated with medical or dental procedures in a clinical setting,
and is legitimately used for industrial purposes and as a propellant for food products; and
WHEREAS, Nitrous Oxide is also subject to recreational misuse and abuse, in
part, because it is easy to purchase from retail vendors and relatively inexpensive; and
WHEREAS, the recreational misuse and abuse of Nitrous Oxide can cause
permanent vitamin deficiencies in the blood, and can cause long-term neurological
effects, including paralysis and death; and
WHEREAS, the incidence of Nitrous Oxide recreational misuse and abuse has
been on the rise both within the City and internationally over the past decade, with multiple
medical studies noting significant increases in recreational misuse in the past five years,
as well as a broader medical understanding of the long-term hematological and
neurological impacts of Nitrous Oxide misuse and abuse; and
WHEREAS, the City does not currently regulate the sale of Nitrous Oxide and finds
and declares that in the absence of local regulation, Nitrous Oxide remains subject to
significant risk of misuse and abuse through sale to individuals who intend to misuse or
abuse the product; and
WHEREAS, the City desires to regulate the sale of Nitrous Oxide in order to
preserve and protect public health and to dissuade sellers of Nitrous Oxide products from
selling to individuals which they know or have reason to know intend to use the products
for illegal purposes (i.e., recreational ingestion and/or inhalation).
WHEREAS, on February 25, 2025, the County of Orange Board of Supervisors
adopted Ordinance No. 25-004, adding Division 19 to Title 3 of the Codified Ordinances
of the County of Orange to prohibit the sale of nitrous oxide in the county, except when
sold for culinary use, wholesale, for use in a vehicle, for the purpose of providing medical
or dental care, or by a pharmacist. The ordinance was supported by the Orange County
District Attorney, the Orange County Sheriff's Department, and the Costa Mesa Police
Department; and
Ordinance No. 2025-06 Page 1 of 5
WHEREAS, the City of Costa Mesa, pursuant to the provisions of the California
Environmental QualityAct ("CEQA") (California Public Resources Code Section 21000 et
seq.) and State CEQA guidelines (Sections 15000 et seq.) has determined that the
ordinance is not a "project" and further, that it is exempt from the provisions of CEQA
pursuant to CEQA Guidelines Section 15061 (b)(3) (because it can be seen with certainty
that the adoption of this Ordinance will not have an effect on the environment) such that
no environmental review under CEQA is required; and
WHEREAS, all legal prerequisites prior to the adoption of this Ordinance have
occurred.
NOW, THEREFORE, THE CITY' COUNCIL OF THE CITY' OF COSTA MESA
DOES ORDAIN AS FOLLOWS:
Section 1. Recitals. The City Council finds that all the recitals, facts and
conclusions set forth above in the preamble of this Ordinance are true and correct.
Section 2.
(Offenses
follows:
Chapter XVI (Prohibition on Sale or Distribution of Nitrous Oxide) of Title 11
Miscellaneous) of the Costa Mesa Municipal Code is hereby added as
Chapter XVI. PROHIBITION ON SALE OR DISTRIBUTION OF NITROLJS OXIDE
11-404. Definitions.
For purposes of this article, the following definitions apply.
A. "Device" means any cartridge, compressed gas cylinder, apparatus, container,
balloon, attachment, nozzle, or other object used to contain, dispense or administer
nitrous oxide.
B. "Nitrous oxide" means the colorless nonflammable gas sometimes identified as
N20, which is sometimes used in aerosols and sometimes used as an anesthetic, and
which, when inhaled, produces loss of sensibility to pain, offen preceded by exhilaration
and laughter and often used as an anesthetic in dentistry. Nitrous oxide is offen informally
or colloquially referred to as "laughing gas," "NOX," "galaxy gas," "whippits," amongst
others.
C. "Person" means any individual or legal entity however constituted or organized.
D. "Wholesale capacity" means sale of or distribution of nitrous oxide or a device to
dispense nitrous oxide to a person that will use nitrous oxide or the device in service or
products for resale. Examples include, but are not limited to, commercial sale of dentistry
supplies to dentists or dentistry offices, commercial sale of devices for the 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).
11-405. Prohibition on Sale or Distribution of Nitrous Oxide
Ordinance No. 2025-06 Page 2 of 5
Except as otherwise authorized by law or allowed under this article, 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.
11-406. Exceptions to Prohibition.
This article does not apply to the sale, attempt to sell, distribution, or other manner of
providing nitrous oxide, or a device containing nitrous oxide, in the following exempt
circumstances:
A.If the nitrous oxide is contained in a food product for use as a propellant.
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 (D)
section 11-404. This exemption only applies if 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 11-405.
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, sold by a licensed retailer, and is flavorless.
D. If the nitrous oxide 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,
distributed, or dispensed by a pharmacist, pharmacist intern, or pharmacy as defined by
California Business & Professions Code§§ 4030, 4036, and 4037, as may be amended,
in the course of their duties as a pharmacist or pharmacist intern, or wholesalers licensed
by the Board of Pharmacy.
F.Or any other circumstances exempted under law.
Any sales or distributions of Nitrous Oxide contemplated under this section shall comply
with all documentation requirements set forth in California Penal Code §381 e.
11-407. Violations and Penalties.
a. Any person who violates this chapter is guilty of a misdemeanor and upon
conviction thereof may be punished by a fine of not more than one thousand
dollars ($1000) or by imprisonment in the County Jail for a period of not more
than six (6) months or by both such fine and imprisonment. Each day any
violation of any said provision of this chapter shall continue shall constitute a
separate offense.
Ordinance No. 2025-06 Page 3 of 5
b. Alternatively, violations may be addressed through the use of civil citations as
set forth in Title 1, Chapterll (Civil Citations), Sections 1-34 et seq.
c. Use of criminal enforcement and/or administrative citations shall not prevent or
preclude the City from seeking injunctive relief and civil penalties in court for
violation of this article. This section shall not serve to limit any other legal
remedies or actions that the City may have to address violations of this chapter.
A violation of this chapter is grounds for a revocation of a business license, if
applicable, pursuant to Section 9-119 of the Costa Mesa Municipal Code.
Section 3. Environmental Compliance. Pursuant to the provisions of the California
Environmental QualityAct ("CEQA") (California Public Resources Code Section 21000 et
seq.) and State CEQAguidelines (Sections 15000 et seq.) the ordinance is not a "project"
and further, that it can be seen with certainty that there is no possibility that the ordinance
in question may have a significant effect on the environment, either directly or indirectly,
and that therefore no environmental review under CEQA is required, pursuant to CEQA
Guidelines Section 15061 (b)(3).
Section 4. Inconsistencies. Any provision of the Costa Mesa Municipal Code or
appendices thereto inconsistent with the provisions of the Ordinance, to the extent of such
inconsistencies and no further, are repealed or modified to that extent necessary to affect
the provisions of this Ordinance.
Section 5. Severability. If any chapter, article, section, subsection, subdivision,
sentence, clause, phrase, word, or portion of this Ordinance, or the application thereof to
any person, is for any reason held to be invalid or unconstitutional by the decision of any
court of competent jurisdiction, such decision shall not affect the validity of the remaining
portion of this Ordinance or its application to other persons. The City Council hereby
declares that it would have adopted this Ordinance and each chapter, article, section,
subsection, subdivision, sentence, clause, phrase, word, or portion thereof, irrespective
of the fact that any one or more subsections, subdivisions, sentences, clauses, phrases,
or portions of the application thereof to any person, be declared invalid or unconstitutional.
No portion of this Ordinance shall supersede any local, State, or Federal law, regulation,
or codes dealing with life safety factors.
Section 6. Effective Date. This Ordinance shall become effective thirty (30) days from
its adoption.
Section 7. Certification. The City Clerk shall certify the passage and adoption of this
Ordinance and shall cause the same to be posted or published in the manner as required
by law.
Ordinance No. 2025-06 Page 4 of 5
PASSED AND ADOPTED this l6'h day of September 2025.
ATTEST:APPROVED AS TO FORM:
"daeeA""ityClerk h#'rney
STATE OF CALIFORNIA
COUNTY OF ORANGE
CITY OF COSTA MESA
SS
1, BRENDA GREEN, City Clerk of the City of Costa Mesa, do hereby certify that
the above and foregoing is a true and correct copy of Ordinance No. 2025-06 was
introduced at a regular meeting of the City Council of the City of Costa Mesa held on the
2nd day of September, 2025, and thereaffer adopted at a regular meeting held on the 1 6'h
day of September, 2025, by the following vote:
AYES: COUNCIL MEMBERS: BULEY, GAMEROS, MARR, PETTIS, CHAVEZ, AND
STEPHENS.
NOES: COUNCIL MEMBERS: NONE.
ABSENT: COUNCIL MEMBERS: REYNOLDS.
IN WITNESS WHEREOF, I have hereby set my hand and affixed the Seal of the
City of Costa Mesa this 3'd day of September, 2025.
!!'D'A"Rb CLERK
Ordinance No. 2025-06 Page 5 of 5