City, county eye limits on the sale of nitrous oxide

Selling the gas to minors banned, but some want greater restrictions

Those odd-looking, eraser-size nitrous oxide canisters may soon be swiped off the shelves of some of the region's smoke and vape shops.

Both Santa Clara County and San Jose are considering rules that would tighten the sale of the gas, which local lawmakers deem a risk to public health and claim is too easily available to buy in some of the area's stores that sell other inhalation products like tobacco and marijuana.

“I'm so concerned about the impact to youth,” said Supervisor Cindy Chavez, who is leading the county's efforts to regulate the gas. “I don't think everybody understands the high risk.”

While nitrous oxide is used by both surgeons and dentists for sedation, it is also a recreational drug known informally as Whip-Its or Noz. California law allows the sale of nitrous oxide to those older than 18 but it prohibits the use of it as a drug. When inhaled, the gas produces an intense and short-lived feeling of euphoria but overuse or misuse can be life-threatening, reducing the oxygen supply for the brain and body.

Chavez, who brought up the nitrous oxide item at Tuesday's county supervisors meeting, said she sees a “series of loopholes” at the state level that's allowing individuals to easily get their hands on canisters. The supervisor's referral passed unanimously, with both Supervisors Otto Lee and Mike Wasserman expressing vocal support. Local officials are now in consultation with one another to determine the legality of whether the county, city or both can go ahead with a ban.

“I really think this is something we need to put a kibosh on,” said Lee during Tuesday's meeting.

The county and city proposals come as efforts at the state level to regulate the gas have so far been unsuccessful. On three separate occasions since 2017, California lawmakers have tried passing bills that would prohibit or place penalties on tobacco shops that sell the gas canisters. But all the bills thus far have petered out.

“That's what local government can do,” said Chavez when asked about the state Legislature's past attempts. “Is close those loop holes off.” While Chavez says the county is

still determining how many smoke shops in the region would be affected, San Jose itself currently has 650 tobacco retailers.

Councilwoman Dev Davis, who is leading San Jose's efforts to regulate the gas, said she sees her city's proposal as an extension of the recent move to become the largest city in the nation to ban the sale of menthol cigarettes and flavored tobacco.

“At the end of the day, this is about protecting kids,” Davis said. “The vape and smoke shops know what's going on when they sell it at their stores. All they sell is inhalants and that's not what the intended use is.”

She added, “I think they're exploiting a loophole in the law to make these canisters available for illegal use.”

Partners and parents who have had family members harmed by the drug both locally and statewide have put further pressure on state lawmakers to take action over the years.

In 2021, El Sobrante resident and physician Mohamed Aboukilila penned an op-ed in the Mercury News calling for the regulation of the gas after his partner Amanda Crosby was found dead next to hundreds of empty canisters. Aboukilila wrote in the article that Crosby was able to easily get the gas from nearby smoke shops in San Francisco. And Barbara Lodge, a Los Angelesbased writer whose son became addicted to nitrous oxide, wrote in the L.A. Times in 2019 about how easy it was to obtain canisters from city smoke shops.

Lodge urged state officials to pass one of the nitrous oxide bills, SB 193, which later failed.