HomeMy WebLinkAbout04 - Adding Chapter 6.40 Prohibition of Sale, Distribution and Use of Nitrous OxideQ �EwPpRT
CITY OF
s NEWPORT BEACH
`q44:09 City Council Staff Report
October 14, 2025
Agenda Item No. 4
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David Miner, Chief of Police - 949-644-3701, dminer@nbpd.org
PREPARED BY: Brad Miller, Lieutenant - (949) 644-3750, bmiller@nbpd.org
TITLE: Ordinance No. 2025-27: Adding Chapter 6.40 Prohibition of Sale,
Distribution and Use of Nitrous Oxide
ABSTRACT:
For the City Council's consideration is the second reading and the adoption of Ordinance
No. 2025-27, which would add Chapter 6.40 to the Newport Beach Municipal Code,
Prohibition of Sale, Distribution and Use of Nitrous Oxide in Newport Beach. The
ordinance was introduced and considered at the Newport Beach City Council's
September 23, 2025 Regular Meeting.
RECOMMENDATIONS:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
and
b) Conduct a second reading and adopt Ordinance No. 2025-27, An Ordinance of the
City Council of Newport Beach, California, Adding Chapter 6.40 (Prohibition of Sale,
Distribution, and Use of Nitrous Oxide) to Title 6 (Health and Sanitation) of the Newport
Beach Municipal Code, Relating to Nitrous Oxide Sales.
DISCUSSION:
At its September 23, 2025 meeting, the Newport Beach City Council introduced and
passed to second reading Ordinance No. 2025-27, which would ban the sale, distribution
and use of nitrous oxide in Newport Beach.
Nitrous oxide, commonly referred to as "laughing gas" or "whippets," has emerged as a
public health and safety concern in Newport Beach and Orange County. While nitrous
oxide has legitimate commercial and medical uses, it is increasingly misused by youth
and young adults as a recreational inhalant. This misuse presents unique challenges that
warrant local regulatory action beyond existing State law.
Nitrous oxide is widely available for purchase under the guise of "whipped cream
chargers" or "culinary use." These products are inexpensive, packaged in colorful,
youth -appealing designs, and are often sold in smoke shops, convenience stores and
online platforms.
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Ordinance No. 2025-27: Adding Chapter 6.40 Prohibition of Sale,
Distribution and Use of Nitrous Oxide
October 14, 2025
Page 2
Unlike alcohol or cannabis, there are no meaningful point -of -sale restrictions. This
accessibility has normalized nitrous oxide as a cheap, easily obtainable drug among
youth and young adults.
Recreational use of nitrous oxide is far from benign. Short-term effects include
disorientation, nausea, blackouts and impaired motor control, which pose immediate risks
to both users and the public, particularly when combined with driving or public
disturbances. More troubling are the long-term effects of chronic misuse, which include
vitamin B12 depletion, irreversible nerve damage, paralysis, cognitive impairments and
even death.
Newport Beach Police Department nitrous oxide related arrests have increased
dramatically in recent years, from five in 2020 to 41 in 2024, with 34 arrests already
recorded in 2025. This represents more than a 700% increase since 2020, with the City
on pace to exceed last year's total by the end of 2025. These figures indicate both a
consistent upward trajectory in use and a concentration of activity within our community,
underscoring the need for proactive intervention.
California Penal Code §381 b makes it illegal to possess or use nitrous oxide for the
purpose of intoxication, but the statute does not adequately deter sales under the
"culinary use" loophole. As a result, local smoke shops and other retailers continue to
profit from the distribution of nitrous oxide for recreational purposes. Law enforcement is
restricted to proving recreational intent by individuals.
Neighboring jurisdictions -- including Santa Ana, Costa Mesa and the County of Orange
-- have recently moved to close this loophole by adopting ordinances that directly prohibit
the sale, distribution and recreational use of nitrous oxide. By adopting a similar local
ordinance, Newport Beach can safeguard public health and provide law enforcement with
a clear and enforceable tool to reduce misuse. A municipal ban on the sale, distribution
and recreational use of nitrous oxide will help close regulatory gaps, reduce youth access,
limit public nuisance impacts and affirm the City's commitment to proactive public safety.
FISCAL IMPACT:
There is no fiscal impact related to this item. Should the proposed ordinance be adopted
by the City Council, the City will serve notice to retailers regarding the prohibition. Any
costs associated with the noticing efforts can be absorbed within the current budget.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
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Ordinance No. 2025-27: Adding Chapter 6.40 Prohibition of Sale,
Distribution and Use of Nitrous Oxide
October 14, 2025
Page 3
NOTICING -
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENT:
Attachment A — Ordinance No. 2025-27
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ATTACHMENT A
ORDINANCE NO. 2025-27
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, ADDING CHAPTER
6.40 (PROHIBITION OF SALE, DISTRIBUTION, AND USE
OF NITROUS OXIDE) TO TITLE 6 (HEALTH AND
SANITATION) OF THE NEWPORT BEACH MUNICIPAL
CODE, RELATING TO NITROUS OXIDE SALES
WHEREAS, Section 200 of the City Charter, of the City of Newport Beach ("City"),
vests the City Council with the authority to make and enforce all laws, rules and
regulations with respect to municipal affairs, subject only to the restrictions and limitations
contained in the City Charter and the State Constitution, and further grants the City
Council the power to exercise, or act pursuant to any and all rights, powers, and privileges
or procedures granted or prescribed by any law of the State of California;
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;
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;
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;
WHEREAS, the incidence of nitrous oxide recreational misuse and abuse has
been on the rise within the City, and has been associated with multiple criminal incidents
throughout the City in the past few months; and
WHEREAS, in the interest of the health, welfare, and safety of Newport Beach
residents and visitors, the City Council desires to prohibit the misuse and abuse of nitrous
oxide by restricting the sale, distribution and use of nitrous oxide within the jurisdictional
boundaries of the City.
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: The table for contents for Title 6 (Health and Sanitation) of the
Newport Beach Municipal Code is hereby amended and shall read as follows:
Title 6
HEALTH AND SANITATION
Chapters:
6.04 Garbage, Refuse and Cuttings
6.05 Use of Expanded Polystyrene Disposable Food Service Ware
6.06 State Mandated Municipal Solid Waste Diversion Programs
6.08 Food Handling Services
6.25 Regulation of Smoking in Public Areas
6.30 Prohibition of Sale and Distribution of Flavored Tobacco Products
6.40 Prohibition of Sale, Distribution, and Use of Nitrous Oxide
Section 2: Chapter 6.40 (Prohibition of Sale, Distribution, and Use of Nitrous Oxide)
of Title 6 (Health and Sanitation) of the Newport Beach Municipal Code is hereby added
and shall read as follows:
Chapter 6.40
PROHIBITION OF SALE, DISTRIBUTION, AND USE OF NITROUS OXIDE
Sections:
6.40.010 Definitions.
6.40.020 Use of Nitrous Oxide Prohibited.
6.40.030 Sale and Distribution of Nitrous Oxide Prohibited.
6.40.040 Exceptions to Prohibition.
6.40.010 Definitions.
For the purposes of this chapter, the following words and phrases have the meaning set
forth in this section:
"Device" means any cartridge, compressed gas cylinder, apparatus, container, or other
object used to contain or dispense or administer nitrous oxide.
"Distribute" means to furnish, giveaway, exchange, transfer, deliver or supply, whether or
not for monetary gain.
"Nitrous oxide" means the colorless nonflammable gas sometimes identified as NZO,
which is sometimes used in aerosols and sometimes used as an anesthetic, and which,
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Ordinance No. 2025-
Page 3 of 5
when inhaled, produces loss of sensibility to pain, often preceded by exhilaration and
laughter.
"Wholesale capacity" means the sale of or distribution of nitrous oxide or devices in
large/bulk quantities to retailers, resellers, or professionals, and not to an individual
consumer or end user.
"Sell" or "sale" means to furnish, exchange, transfer, deliver, or supply for monetary gain.
6.40.020 Use of Nitrous Oxide Prohibited.
It shall be unlawful to use or attempt to use nitrous oxide within the City, unless the use
of the nitrous oxide is authorized by the exceptions set forth in Section 6.40.040.
6.40.030 Sale and Distribution of Nitrous Oxide Prohibited.
It shall be unlawful for any person in the City to sell, advertise for sale, offer for sale,
attempt to sell, distribute, or otherwise provide to any person, directly or indirectly, nitrous
oxide, any device to dispense or administer nitrous oxide, or any device that contains any
quantity of nitrous oxide, unless authorized by the exceptions set forth in Section
6.40.040.
6.40.040 Exceptions to Prohibition.
This chapter shall not apply in the following circumstances:
A. When nitrous oxide is contained in a food product and used solely as a propellant.
B. When nitrous oxide or any associated device is sold, advertised, offered for sale,
attempted to be sold, distributed, or otherwise provided in a wholesale capacity.
C. When nitrous oxide or any associated device is used, sold, advertised, offered for
sale, attempted to be sold, distributed, or otherwise provided solely for the purpose of
enhancing vehicle performance.
D. When nitrous oxide is used, sold, advertised, offered for sale, attempted to be sold,
distributed, or otherwise provided for medical or dental care, under the supervision of
a State licensed medical or dental practitioner and in accordance with all applicable
rules and regulations of the State.
Ordinance No. 2025-
Page 4 of 5
E. When a person uses nitrous oxide pursuant to a valid prescription issued by a medical
practitioner licensed by the State, and such use is consistent with the terms of the
prescription.
F. When nitrous oxide or any associated device is sold, advertised, offered for sale,
attempted to be sold, distributed, or otherwise provided by: a State licensed
pharmacist, pharmacist intern, or pharmacy as defined by California Business &
Professions Code §§ 4030, 4036, and 4037; or a wholesaler licensed by the California
State Board of Pharmacy.
G. Any other circumstances exempted under law.
Section 3: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
Section 4: If any section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this ordinance. The City
Council hereby declares that it would have passed this ordinance and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
Section 5: The City Council finds the introduction and adoption of this ordinance
is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections
15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect
physical change in the environment) and 15060(c)(3) (the activity is not a project as
defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title
14, Division 6, Chapter 3, because it has no potential for resulting in physical change to
the environment, directly or indirectly.
Section 6: Except as expressly modified in this ordinance, all other sections,
subsections, terms, clauses and phrases set forth in the Newport Beach Municipal Code
shall remain unchanged and shall be in full force and effect.
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Ordinance No. 2025-
Page 5 of 5
Section 7: The Mayor shall sign and the City Clerk shall attest to the passage
of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be
published pursuant to City Charter Section 414. This ordinance shall be effective thirty
(30) calendar days after its adoption.
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 23rd day of September, 2025, and adopted on the 14th
day of October, 2025, by the following vote, to -wit:
AYES:
NAYS:
ABSENT:
Joe Stapleton, Mayor
ATTEST:
Molly Perry, Interim City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Aaron C. Harp, City Attorney
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