What is Nitrous Oxide
Nitrous oxide (N2O) is a colorless gas that has a slightly sweet taste and smell. Commonly known as "laughing gas", its effects can create euphoria, relaxation, and detachment from reality. N2O is an anesthetic that is most often used in combination with other anesthetic drugs. It is widely used for dental work and since at least the late 1800s, nitrous oxide has been used in many medical procedures. In addition to bodily uses, nitrous oxide has a number of household usages. It is commonly found in small canisters or cartridges referred to as "whipped cream chargers." The gas from these cartridges are often used in whipped cream dispensers. However, they are also used as a recreational substance for their psychoactive and sedative effects. In fact, whip-its have become so popular that on October 30, 2012, the Substance Abuse and Mental Health Services Administration, which is part of the United States Department of Health and Human Services, issued an advisory communication pointing out to emergency room doctors around the county the potential dangers that the gas can cause . The warning states that "massive doses of nitrous oxide can cause unconsciousness, apneic respiratory failure, and death. The use of nitrous oxide can also cause significant environmental destruction." In addition to the potential medical issues that can result from the inhalation of nitrous oxide, there are other issues associated with the inhalation of nitrous oxide, commonly referred to as "huffing". Unlike the use of nitrous oxide when medically administered, the inhalation of the gas releases depleting ozone substances into the environment and reduces the amount of oxygen available to the body. In addition, breathing the gas reduces the amount of oxygen available to the brain. Regular users of nitrous oxide can experience nerve damage and paralysis. The inhalation of nitrous oxide is also known to create imperfections in the surface of the user’s skin. Further, users of the gas can experience nausea, vomiting, hallucination, and organ damage.
Nitrous Oxide Drug Crime Laws in Texas
Texas has two laws that apply to nitrous oxide: Section 485.031 of the Texas Health and Safety Code and Chapter 466 of the Occupations Code. The first law prohibits the possession, sale, manufacture, distribution, or transfer of nitrous oxide, subject to limited exceptions. Section 485.001(7) defines a "nitrous oxide" as: [A]ny nitrous oxide gas, typically containing nitrogen and an oxygen compound, that is usually contained in a pressurized cylinder. The term includes: (A) nitrous oxide when used as an anesthetic or a general anesthetic; (B) nitrous oxide when used for propulsion, oxidation, or as a fuel; and (C) nitrous oxide when used to inflate tires.
Section 485.001(9) defines a "whippit" as a device that expels nitrous oxide from a pressurized cylinder by use of a cartridge. A "cartridge" means a device with a volume of less than four ounces that is filled with nitrous oxide and is designed for use with a whippit. S.B. 1146, the current statute at Section 485.031 of the Health and Safety Code, prohibits the sale of cartridges or whippits in the following entities: An anesthesiologist or dentist who administers nitrous oxide for medical purposes or a licensed inhalation anesthesiologist is exempted from the prohibition. Section 466.001(11) defines a "whippit" to mean an appliance that releases nitrous oxide from a cartridge. Section 465.001(9) defines a "dispenser" as a person who sells nitrous oxide cartridges or whippits. Section 466.002 prohibits the sale of nitrous oxide cartridges or whippits in or from the following locations: An anesthesiologist or dentist who administers nitrous oxide for medical purposes is exempted from the prohibition. Section 465.006(a) provides that a person commits an offense if the person is a dispenser and sells nitrous oxide cartridges or whippits in or from a prohibited location. Section 465.006(b) provides that an offense under Subsection (a) is a Class A misdemeanor. Section 465.005(b) provides that a person commits an offense if the person possesses one or more nitrous oxide cartridges or whippits with the intent to change the chemical structure or characteristics of a human body. Section 465.005(c) provides that an offense under Subsection (b) is a Class B misdemeanor.
In addition to the criminal penalties discussed above, the sale of nitrous oxide in violation of these sections can result in civil penalties. Section 485.011(b) provides that in addition to the punishment prescribed by law, the attorney general may file a suit to assess the civil penalty of a person who violates this subchapter. Section 466.004(a) provides that the attorney general may subject a person who violates Section 465.005(a) to a civil penalty. Section 466.004(b) provides that Adjudication of the offense whether civil or criminal does not prohibit the State from pursuing an administrative remedy, including a remedy under Section 161.081, 161.082, 161.083, 161.084 or 161.085, Health and Safety Code. Section 466.004(c) provides that the attorney general may bring a suit to enforce a civil penalty under this subchapter in a district court in Travis County or another county in which the defendant resides or conducts business. Section 465.008(1) provides that an entity that delivers a written request to a law enforcement agency to enforce Section 465.006(a) is entitled to recover costs and reasonable and necessary attorney’s fees incurred in connection with the action. Section 465.008(2) provides that an entity besides an association of dispensing agents that delivers a written request to a law enforcement agency to enforce Section 465.006(a) is entitled to recover a civil penalty of $1,000 for each violation investigated or enforced in response to the request.
Federal and State Laws
In addition to state laws, several federal regulations touch on the subject of nitrous oxide. The Drug Enforcement Administration (DEA), a bureau of the U.S. Department of Justice, regulates the use of nitrous oxide under the Controlled Substances Act. According to the Act, the drug is classified as a List IV substance. List IV substances are considered "potentially dangerous" and are heavily regulated by the federal government.
In order to obtain nitrous oxide in Texas, a company must obtain a registration with the DEA. Which type of registration is required is dependent upon the business. For example, medical facilities require a Bulk Registration in order to obtain nitrous oxide. Rather than applying directly for one of these registrations, most companies apply for a Distribution Registration. This registration allows businesses to receive, distribute and supply nitrous oxide. Businesses such as manufacturers, wholesalers and retailers fall under this category, and must have a Distribution Registration with the DEA in order to conduct business. Not only does the DEA regulate people or companies conducting business related to nitrous oxide, but manufacturing nitrous oxide is also regulated by the federal government. Manufacturers must obtain Manufacturer Registration and Listing with the DEA. According to Title 21 of the Code of Federal Regulations, all manufacturers of nitrous oxide must comply with the regulations set forth in the chapter. Some of these regulations include registration and permitting of distributors, chemical producers and pharmaceutical companies. Nitrous oxide falls under federal jurisdiction, which means you will need to submit an application for registration and obtain all necessary licenses from the DEA. But just because the federal government regulates the use of nitrous oxide does not mean Texas regulations will not play a part in how businesses operate. However, in many cases, federal law may supersede state law. Another regulation for nitrous oxide is the National Fire Protection Association’s (NFPA) "Compressed Gases and Cryogenic Fluids." Among other things, the guidelines set forth by the NFPA cover the safe storage and handling of nitrous oxide. Regulated by the Texas Commission on Fire Protection, these regulations address the dangers of nitrous oxide. Some of these dangers include; fire, explosion and toxic gas.
Nitrous Oxide Penalties in Texas
In addition to the general criminal penalties for drug possession, distribution, illegal manufacture and other forms of trafficking, Texas holds out specific penalties for many common illegal substances, including nitrous oxide.
Possession
It is a Class B misdemeanor in Texas to be in possession of less than 2 ounces of nitrous oxide gas. Conviction results in up to a $2,000 fine and up to 180 days in jail. If you are found to have 2-4 ounces of nitrous oxide gas, it is a Class A misdemeanor and is punishable by up to a $4,000 fine and up to a year in jail. The penalty for possessing 4 ounces or more of nitrous oxide gas is a state jail felony punishable by between 180 days and two years in state jail and a fine of up to $10,000. You can be charged with possession of nitrous oxide under Texas Health and Safety Code 485.031 if the prosecution can prove you have a type and quantity of nitrous oxide gas in your possession, and the nitrous oxide is for the purpose of inhalation or being administered to another for the purpose of inhalation. That means that if you forget that your pie-in-the-sky buddy is planning on using your nitrous oxide gas for something illegal, you can still be charged with a crime, even if you did not mean to give it away. If the prosecution can prove you knew your nitrous oxide was going to be used for illegal purposes, you can be sentenced harshly under Texas law.
Distribution
It is a state jail felony to be in possession of a nitrous system, unless you meet the statutory requirements for being a nitrous oxide vendor. You are a vendor if you are an employee of a convenience store, automobile repair store, car wash or other business that sells nitrous oxide in pressurized canisters or sold as propellant in whipped cream dispensers. A vendor must keep a record of each sale, which includes information about the product, the customer and the seller, and copies of the invoice for six months. The records are open to inspection by law enforcement. A vendor who steps outside the bounds of this statute may be charged as a drug dealer who distributes nitrous oxide for illegal purposes. You may be charged with a second- or third-degree felony and face a long jail sentence and fines. A first conviction for a person who has is a non-vendor carries a burden of 99 years in prison. Subsequent convictions carry the death penalty.
How Nitrous Oxide is Policed in Texas
Law enforcement authorities in the United States have their hands full as drug paraphernalia, legal or not, is becoming a widespread problem. Enter nitrous oxide (N2O), an odorless, colorless gas commonly known as laughing gas. N2O is widely available and involves low production costs, which gives it a lucrative edge for street suppliers and illegal market dealers. In Texas, enforcement of N2O laws largely falls on the Department of Public Safety and local law enforcement agencies; however, the distribution of nitrous oxide is open to a myriad of interpretations.
The Texas Penal Code segregates the possession and delivery of nitrous oxide into two categories: the Sale, Distribution and Delivery of Nitrous Oxide Statute (Health and Safety Code, Section 485.031) and the Delivery of Nitrous Oxide Statute (Penal Code , Section 481.125). The differences between the two are as follows:
Delivering nitrous oxide or another inhalant to another individual, or to a company for the purpose of committing an illegal act, can be a felony. Depending on the severity of the offense, punishments could include a fine of up to $20,000 and/or a life sentence in prison for repeat offenders. If the delivery of nitrous oxide was intended only for use a legal purpose, then charges will likely be classified as a misdemeanor.
As for the possession of nitrous oxide with the intent to inhale it, punishments under the Sale, Distribution and Delivery of Nitrous Oxide Statute are somewhat more lenient. If a charged party is found guilty, the punishment may include a $500 fine and/or community service.
How Nitrous Oxide Laws Affect Multiple Intersecting Industries
The impact of Texas nitrous oxide regulations extends across several key industries, primarily the automotive sector and the medical field. In the automotive realm, the laws surrounding the sale and distribution of nitrous oxide are designed to prevent misuse while also ensuring availability for legitimate uses such as in performance enhancers for racing vehicles. However, persistent issues with "street kits" has caused law enforcement and legislators to crack down on purchases of automotive nitrous oxide, creating compliance challenges for distributors and retailers.
Medical nitrous oxide regulations are a different story. While nitrous oxide can be used as a propellant in some consumer products, it is most commonly found in medical settings. This is where federal and state-level regulations coexist, creating both confusion and complexity for healthcare organizations. For example, compressed gas suppliers are required by law to have permits to sell regulated gases, including nitrous oxide, and ozone-depleting substances (ODS). Hospitals, physicians and dentists which use medical nitrous oxide should ensure that supply contracts are with permitted suppliers and that staff understands the gas’s storage, handling and administration requirements.
A broader concern for healthcare providers is the role they can play in the illegal use or distribution of nitrous oxide. State nitrous oxide laws include criminal charges for the sale or distribution of nitrous oxide for illegal use, and healthcare providers have a duty to report the suspected misuse of medical nitrous oxide — whether by another employee or by patients themselves. Nitrous oxide can be used recreationally as a neural anesthetic, causing its users to experience sensations of euphoria, relaxation and detachment. Though nitrous oxide is not a regulated drug under the U.S. Food and Drug Administration, it can still carry serious legal ramifications when used improperly. Texas healthcare workers, in particular, have been in the national news in recent months due to multiple reports of nitrous oxide abuse within hospital and care facility settings.
Staying up to Date and Play It Safe
As the laws and regulations surrounding the use of nitrous oxide continue to evolve, it is crucial for both individuals and businesses to stay informed about the latest developments. Here are some key steps to ensure that you remain compliant with all relevant laws and regulations:
Follow Established Sources
For the most accurate and up-to-date information about nitrous oxide laws in Texas, individuals and businesses should regularly consult established sources such as government websites, law journals, and industry publications. Government agencies such as the FDA, CDC, and ATF provide important information about the legal status of nitrous oxide and its various uses. Industry publications, legal analysis, and academic research papers also provide valuable insights into the nitrous oxide landscape in Texas.
Engage with Experts
Throughout every industry, there are attorneys and other consultants who can provide specific legal advice about a client’s needs. The Texas nitrous oxide attorney at The Henson Fuerst Law Firm is focused on helping our clients navigate the complicated world of nitrous safety, laws, and risks.
Evaluating Responsible Use
As with any product or substance, nitrous oxide should be used responsibly. Unfortunately , there are news reports of deaths and medical emergencies related to nitrous oxide. Careful evaluation of when, where, why, and how nitrous oxide is used is associated with safe use. Those who choose to use nitrous oxide should thoroughly research best practices to ensure that the substance is being used properly and in accordance with all applicable laws. It is imperative for any business that sells or distributes nitrous oxide to carefully vet who they do business with to ensure that the product will not be used for illicit or illegal purposes.
Careful Consideration of the Industrial Uses of Nitrous
Businesses should conduct diligent research to become familiar with the industrial uses of nitrous oxide and how its production and distribution works. This includes careful consideration of suppliers, uses, storage, and disposal of both the substance and its containers. It is advisable for businesses to be aware of the potential legal liabilities for harm caused by their products. This includes, but is not limited to, proper instructions and warning labels for the safe use, transport, storage, and disposal of nitrous oxide containers. Regulatory compliance with state and federal laws is essential for any business involved in the manufacturing, distribution, or sale of nitrous oxide.