Assembly Bill A10923

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   10923
 
                           I N  A S S E M B L Y
 
                               April 9, 2026
                                ___________
 
 Introduced  by  M.  of  A.  McDONALD, K. BROWN, SIMPSON -- read once and
   referred to the Committee on Consumer Affairs and Protection
 
 AN ACT to amend the public health law and the general business  law,  in
   relation  to  prohibiting  the retail sale of nitrous oxide and estab-
   lishing civil penalties for violations; to  amend  the  public  health
   law,  in relation to including nitrous oxide misuse in the health care
   and wellness education and outreach program; and to repeal section 834
   of the general business law relating to  the  sale  of  whipped  cream
   chargers
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 5 of section 3380 of the public health law,  as
 amended  by  chapter  667 of the laws of 1989, paragraphs (b) and (f) as
 amended by chapter 551 of the laws  of  1990,  is  amended  to  read  as
 follows:
   5.  (a)  No  person  shall  use  nitrous oxide for purposes of causing
 intoxication, inebriation, excitement, stupefaction or  the  dulling  of
 the brain or nervous system of [himself] THEMSELF or another.
   (b)  No  person  shall sell any canister or other container of nitrous
 oxide unless granted an exemption pursuant to this subdivision.  [In  no
 event  shall any canister or other container of nitrous oxide be sold to
 a person under the age of twenty-one years.]
   (c) This subdivision shall not apply to the use of  nitrous  oxide  in
 industrial,  medical  or  dental  applications,  or to specific products
 which must use nitrous oxide as  a  propellant  provided  such  products
 shall  in  no  event be sold at retail to the public, as shall be deter-
 mined by the commissioner pursuant to paragraph (d) of this subdivision.
   (d) The commissioner [is directed to] SHALL promulgate regulations  to
 exempt  specific  products which must use nitrous oxide, or a mixture of
 nitrous oxide with other gases, as a propellant from the  provisions  of
 this  chapter  provided such regulations shall prohibit the sale of such
 products at retail to the public.
   (e) The provisions of this section shall not be deemed to prohibit the
 sale of food products containing nitrous oxide  provided  such  products
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD15348-01-6
 A. 10923                            2
 
 comply  with  the provisions of section sixteen-a of the agriculture and
 markets law.
   [(f)  The  commissioner may, upon the application of a manufacturer or
 seller of a product containing nitrous oxide and intended  for  sale  at
 retail,  authorize the sale of such a product if there is no evidence of
 substantial misuse of the product as defined by this subdivision and  if
 the manufacturer or seller takes the following steps to:
   (i)  clearly  indicate the legitimate purpose or use of the product on
 the package;
   (ii) display prominently on the package in heavy type  print  language
 which  warns  of  health  dangers  resulting  from the misuse of nitrous
 oxide;
   (iii) demonstrate that the product  bears  a  distinctive  feature  or
 features  enabling it to be clearly distinguished from the nitrous oxide
 products of other manufacturers;
   (iv) educate wholesale and retail businesses which sell the product of
 the dangers of nitrous oxide and the need to monitor its sale; and
   (v) prevent their sale of the product to any person,  firm  or  corpo-
 ration  who  or  which  sells drug-related paraphernalia as such term is
 defined by subdivision two of section eight hundred fifty of the general
 business law.]
   § 2. Section 834 of the general business law is REPEALED.
   § 3. The general business law is amended by adding a new article  38-C
 to read as follows:
                               ARTICLE 38-C
                               NITROUS OXIDE
 SECTION 840. DEFINITIONS.
         841. RESTRICTIONS ON SALE.
         842. RESTRICTIONS  ON  THE  SALE  OF  NITROUS  OXIDE;  EXEMPTION
                REQUIRED.
         843. ENFORCEMENT.
         844. PREEMPTION.
   § 840. DEFINITIONS. FOR THE PURPOSES OF THIS  ARTICLE,  THE  FOLLOWING
 TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   1.  "ACCEPTABLE  SALE" FOR THE PURPOSES OF THIS ARTICLE SHALL MEAN THE
 SALE OF NITROUS OXIDE AUTHORIZED TO BE SOLD UNDER  AN  EXCEPTION  ESTAB-
 LISHED IN SUBDIVISION FIVE OF SECTION THIRTY-THREE HUNDRED EIGHTY OF THE
 PUBLIC HEALTH LAW.
   2.  "NITROUS  OXIDE"  FOR  THE  PURPOSES OF THIS ARTICLE MEANS NITROUS
 OXIDE BUT SHALL NOT  INCLUDE  FOOD  PRODUCTS  CONTAINING  NITROUS  OXIDE
 PROVIDED  SUCH  PRODUCTS COMPLY WITH THE PROVISIONS OF SECTION SIXTEEN-A
 OF THE AGRICULTURE AND MARKETS LAW.
   3. "RETAIL SALE" OR "AT RETAIL" MEANS A SALE TO A CONSUMER OR  TO  ANY
 PERSON  FOR  ANY PURPOSE OTHER THAN FOR RESALE. FOR THE PURPOSES OF THIS
 SECTION, THE TERM "RETAIL SALE" SHALL NOT INCLUDE AN ACCEPTABLE SALE  OF
 NITROUS OXIDE.
   §  841.  RESTRICTIONS ON SALE. 1. NO PERSON, CORPORATION, PARTNERSHIP,
 LIMITED LIABILITY COMPANY, FIRM, OR  ANY  OTHER  BUSINESS  ENTITY  DOING
 BUSINESS WITHIN THIS STATE SHALL SELL OR OFFER FOR SALE NITROUS OXIDE AT
 RETAIL TO THE PUBLIC UNLESS THE SALE WOULD BE DEEMED AN ACCEPTABLE SALE.
   2.  ANY  PERSON,  CORPORATION, PARTNERSHIP, LIMITED LIABILITY COMPANY,
 FIRM, OR ANY OTHER BUSINESS ENTITY THAT VIOLATES THE PROVISIONS OF  THIS
 SECTION  SHALL  BE SUBJECT TO A CIVIL PENALTY OF NOT MORE THAN TWO THOU-
 SAND FIVE HUNDRED DOLLARS FOR AN INITIAL OFFENSE AND NOT MORE THAN  FIVE
 THOUSAND DOLLARS FOR THE SECOND AND EACH SUBSEQUENT OFFENSE.
 A. 10923                            3
 
   §  842. RESTRICTIONS ON THE SALE OF NITROUS OXIDE; EXEMPTION REQUIRED.
 1. IT SHALL BE A VIOLATION OF THIS SECTION FOR ANY PERSON,  CORPORATION,
 PARTNERSHIP,  LIMITED  LIABILITY  COMPANY, FIRM OR OTHER BUSINESS ENTITY
 DOING BUSINESS WITHIN THE STATE TO POSSESS WITH THE INTENT  TO  SELL  OR
 OFFER FOR SALE NITROUS OXIDE WITHOUT AN EXEMPTION GRANTED BY THE DEPART-
 MENT  OF  HEALTH  PURSUANT  TO  SUBDIVISION FIVE OF SECTION THIRTY-THREE
 HUNDRED EIGHTY OF THE PUBLIC HEALTH LAW.
   2. ANY PERSON, CORPORATION, PARTNERSHIP,  LIMITED  LIABILITY  COMPANY,
 FIRM,  OR ANY OTHER BUSINESS ENTITY THAT VIOLATES THE PROVISIONS OF THIS
 SECTION SHALL BE SUBJECT TO A CIVIL PENALTY OF NOT MORE THAN  TWO  THOU-
 SAND  FIVE HUNDRED DOLLARS FOR AN INITIAL OFFENSE AND NOT MORE THAN FIVE
 THOUSAND DOLLARS FOR THE SECOND AND EACH SUBSEQUENT OFFENSE.
   § 843. ENFORCEMENT. THE ATTORNEY GENERAL OR ANY STATE OR LOCAL  HEALTH
 OFFICER,  TOWN, VILLAGE OR CITY ATTORNEY, OR THE CHIEF EXECUTIVE OFFICER
 OF A MUNICIPALITY MAY INSTITUTE AN ACTION IN A COURT OF COMPETENT JURIS-
 DICTION TO ENJOIN ANY ACTIVITY PROHIBITED PURSUANT TO THIS ARTICLE.
   § 844. PREEMPTION. THIS ARTICLE  PREEMPTS  ALL  LOCAL  ORDINANCES  AND
 REGULATIONS  GOVERNING  THE  SALE  OF NITROUS OXIDE, WITH ALL SUCH ORDI-
 NANCES ENACTED PRIOR TO THE EFFECTIVE DATE RENDERED VOID.
   § 4. Subdivision 1 of section 207 of the public health law is  amended
 by adding a new paragraph (t) to read as follows:
   (T)  THE  DANGERS ASSOCIATED WITH THE MISUSE OF NITROUS OXIDE, INCLUD-
 ING, BUT NOT LIMITED TO, VITAMIN B-12 DEFICIENCY, IMPAIRED  MOTOR  FUNC-
 TION, PSYCHIATRIC DISTURBANCES, LOSS OF CONSCIOUSNESS, ASPHYXIATION, AND
 DEATH.  THE  COMMISSIONER  SHALL  CONSULT  WITH  THE COMMISSIONER OF THE
 OFFICE OF ADDICTION SERVICES AND SUPPORTS WHEN DEVELOPING EDUCATION  AND
 OUTREACH PROGRAMS UNDER THIS PROVISION.
   § 5. Severability clause. If any clause, sentence, paragraph, subdivi-
 sion,  section  or  part  of  this act shall be adjudged by any court of
 competent jurisdiction to be invalid, such judgement shall  not  affect,
 impair, or invalidate the remainder thereof but shall be confined in its
 operation  to  the  clause, sentence, paragraph, subdivision, section or
 part thereof directly involved in the controversy in which  such  judge-
 ment shall have been rendered. It is hereby declared to be the intent of
 the  legislature  that  this  act  would  have been enacted even if such
 invalid provisions had not been included herein.
   § 6. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.