Item No. 11.
TO:HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM:OFFICE OF THE CITY MANAGER
BY:IRMA HUITRON, DIRECTOR OF COMMUNITY DEVELOPMENT
DATE:SEPTEMBER 8, 2026
SUBJECT:DISCUSSION REGARDING OPTIONS FOR REGULATING THE SALE OF NITROUS
OXIDE AND KRATOM
EXECUTIVE SUMMARY
The City Council will discuss staff’s research regarding the public health, safety, and community impacts associated with the misuse of nitrous oxide and kratom and provide direction regarding potential local regulations. The City Council may direct staff to develop regulations addressing nitrous oxide, kratom, or both, including measures that preserve legitimate uses of nitrous oxide and options for regulating kratom generally or focusing on highly concentrated 7-hydroxymitragynine (7-OH) products due to their heightened potency and opioid-like effects.
RECOMMENDATION
That the City Council:
1. Receive and file this report and provide staff with direction on whether to pursue any of the below options:
a. Option 1: Direct staff to prepare an ordinance regulating the sale and distribution of nitrous oxide within the City; or
b. Option 2: Direct staff to prepare an ordinance regulating the sale and distribution of kratom products within the City, and provide direction to pursue either:
i. Comprehensive regulation of all kratom products, including traditional botanical kratom and synthetic or highly concentrated 7-hydroxymitragynine (7-OH) products; or ii. Targeted regulation of synthetic 7-OH and/or products exceeding an established 7-OH concentration threshold, without prohibiting traditional botanical kratom solely because it contains naturally occurring kratom alkaloids; or
c. Option 3: Direct staff to prepare ordinances regulating both nitrous oxide and kratom products within the City and, with respect to kratom, provide direction to pursue either the comprehensive or targeted regulatory approach described above.
BACKGROUND
At the direction of the City Council, staff evaluated amending the City's existing tobacco regulations to prohibit the sale of nitrous oxide and kratom. In conducting this review, staff researched the availability, potential misuse, public health and safety concerns, and existing regulatory framework applicable to both substances.
Staff's research determined that regulating nitrous oxide and kratom solely through the City's tobacco regulations may not provide the most comprehensive or effective regulatory approach. Although these products may be sold at smoke and tobacco shops, they are not tobacco products and may also be available through other types of retail establishments. In addition, both substances have characteristics and legitimate uses that warrant regulations tailored specifically to each product. Accordingly, staff expanded its review to evaluate regulatory approaches adopted or considered by other jurisdictions, as well as existing and pending State and federal regulations.
For nitrous oxide, staff identified regulatory approaches that restrict products and retail transactions associated with recreational misuse while preserving legitimate medical, dental, veterinary, culinary, automotive, manufacturing, industrial, and wholesale uses. This approach would allow the City to address the availability of nitrous oxide regardless of the type of retail establishment selling the product, rather than limiting regulation to tobacco retailers.
For kratom, staff's research identified an additional policy consideration regarding the distinction between traditional botanical kratom and synthetic or highly concentrated 7-hydroxymitragynine (7-OH) products. Traditional kratom is derived from the leaves of the Mitragyna speciosa plant and naturally contains mitragynine and relatively small amounts of 7-OH. In contrast, certain commercially available products contain synthetic or substantially higher concentrations of 7-OH and have raised heightened public health concerns because of their potency, opioid-like effects, and potential for dependency and misuse.
Based on this information, staff is presenting regulatory options that further the City Council's original direction while providing a more comprehensive framework for addressing the sale and distribution of these products. The Council may direct staff to regulate nitrous oxide, kratom, or both substances and, with respect to kratom, determine whether regulations should apply to all kratom products or focus on synthetic or highly concentrated 7- OH products.
ANALYSIS
Nitrous Oxide
Nitrous oxide (N₂O), commonly referred to as “laughing gas,” is a colorless, nonflammable gas with several legitimate commercial and professional applications. It is used as an anesthetic in medical and dental settings, as a propellant in food preparation, and for certain automotive, manufacturing, and industrial purposes.
Nitrous oxide can also be inhaled recreationally for its short-term intoxicating effects, including euphoria. Products containing nitrous oxide are available in cartridges, compressed gas cylinders, canisters, and other dispensing devices. Larger-capacity cylinders and devices that can facilitate recreational inhalation are also commercially available through retail establishments and online sellers.
The misuse or excessive inhalation of nitrous oxide can cause serious health consequences. The U.S. Food and Drug Administration (FDA) has identified potential effects including asphyxiation, loss of consciousness, numbness, limb weakness, neurological effects, difficulty walking, psychiatric disturbances, and other complications. Repeated or prolonged exposure can result in serious neurological injury, and misuse can result in death.
In addition to individual health impacts, recreational nitrous oxide use can result in broader public safety and quality-of-life concerns, including impaired driving, recreational use in public areas, improperly discarded cylinders and canisters, litter, and other nuisance activity.
The City of San Buenaventura (also known as the City of Ventura) identified similar concerns in adopting regulations restricting nitrous oxide sales, including public intoxication, impaired driving, improper disposal of canisters, and impacts to quality of life. Its regulatory approach preserves legitimate medical, dental, culinary, automotive, and wholesale uses. Other California cities have also adopted similar local regulations. For example, the City of Alhambra adopted an ordinance in January 2026 prohibiting the sale and distribution of nitrous oxide, while the cities of Anaheim (January 2026) and Santa Ana (May 2025) have adopted ordinances generally prohibiting the retail sale or distribution of nitrous oxide and dispensing devices while establishing exemptions for legitimate uses.
These ordinances reflect a similar regulatory approach: rather than attempting to determine a purchaser's intended use at the point of sale, cities restrict retail access to nitrous oxide and related dispensing devices while establishing exemptions for legitimate commercial, professional, and industrial uses.
Existing California Regulation of Nitrous Oxide
California law currently regulates the possession, sale, and distribution of nitrous oxide under Penal Code Sections 381b through 381e. Among other provisions, State law makes it a misdemeanor to possess nitrous oxide with the intent to inhale or ingest it for purposes of intoxication or similar effects; prohibits the sale, furnishing, or distribution of nitrous oxide to persons under 18 years of age; and establishes penalties when a person knowingly distributes nitrous oxide for prohibited use and that use results in great bodily injury or death.
State law also establishes transaction recordkeeping, identification, purchaser acknowledgment, and warning requirements for certain nitrous oxide sales and distributions, subject to specified exemptions. However, existing State law does not establish a comprehensive prohibition on the retail sale of nitrous oxide to adults. As a result, nitrous oxide may continue to be sold to adults in circumstances that do not otherwise violate existing State law. (Pen. Code, §§ 381b–381e.)
Pending Legislation
The California Legislature is currently considering legislation that would substantially expand State regulation of nitrous oxide.
Senate Bill 936 (Blakespear/Umberg)
SB 936 would generally prohibit the sale, offer for sale, or distribution of nitrous oxide containers capable of holding more than eight grams; containers from which an individual may directly inhale nitrous oxide; flavored nitrous oxide; and certain devices intended or reasonably known to facilitate inhalation. The bill includes exemptions for legitimate medical, dental, veterinary, food preparation, automotive, manufacturing, industrial, and wholesale uses.
Importantly, SB 936 expressly provides that it would not limit the authority of a city or county to adopt or enforce an ordinance imposing further restrictions on the sale or distribution of nitrous oxide. As of August 16, 2026, SB 936 remains pending before the Legislature and has not become law.
Senate Bill 758 (Umberg/Menjivar)
SB 758 would prohibit retailers subject to the State's Cigarette and Tobacco Products Licensing Act from selling nitrous oxide at retail locations, subject to specified exceptions. The bill also expressly authorizes cities and counties to impose greater restrictions on retail nitrous oxide sales, provided that legitimate uses, including medical, dental, food preparation, industrial, manufacturing, and automotive uses, are not restricted. As of August 16, 2026, SB 758 remains pending before the Legislature and has not become law.
Accordingly, existing State law addresses the misuse of nitrous oxide, sales to minors, and certain aspects of its sale and distribution, but does not comprehensively restrict retail sales to adults. The pending legislation would significantly expand State regulation but has not yet become law. A local ordinance could address this existing regulatory gap by establishing restrictions on the types of nitrous oxide products that may be sold at retail, where and under what circumstances they may be sold, and the devices used to dispense or facilitate the recreational inhalation of nitrous oxide, while maintaining exemptions for legitimate uses.
Potential Local Regulation of Nitrous Oxide
If directed by the City Council, staff could prepare an ordinance establishing local restrictions on the retail sale and distribution of nitrous oxide. Rather than attempting to determine a purchaser's intent after a sale occurs, the ordinance could regulate the products and transactions that facilitate recreational use.
If directed to proceed, staff would evaluate an ordinance that could prohibit certain nitrous oxide products associated with recreational inhalation and establish additional retail restrictions for products permitted to be sold.
Potential provisions could address large-capacity cylinders or canisters, flavored nitrous oxide, containers designed or capable of allowing direct inhalation, and devices intended or commonly used to facilitate inhalation. For sales that remain permissible, staff would also evaluate appropriate retail safeguards, including age verification, product placement, signage, quantity or container-size limitations, and other sales controls.
At the same time, the ordinance could preserve legitimate uses of nitrous oxide through exemptions for:
Medical, dental, and veterinary uses by licensed professionals; Pharmacy-related distribution;
Food preparation and commercial kitchen applications;
Automotive applications;
Manufacturing and industrial uses;
Legitimate wholesale transactions; and
Other uses expressly authorized by State or federal law.
For example, the ordinance could allow a restaurant or commercial food-service operation to continue purchasing nitrous oxide for legitimate culinary purposes while prohibiting or restricting the retail sale of large- capacity or flavored nitrous oxide products marketed or configured for recreational inhalation. Similarly, legitimate medical, dental, automotive, manufacturing, and industrial uses would not be the focus of the City's regulations.
The ordinance could also establish local enforcement mechanisms applicable to businesses that violate the requirements, including administrative citations, civil remedies, and other penalties or remedies authorized by law.
This approach would provide the City with a direct mechanism to address the retail availability of nitrous oxide products associated with recreational misuse rather than relying solely on existing State laws that generally address purchaser age, intent, or conduct associated with misuse. If directed by the City Council, staff would return with specific product definitions, exemptions, retail requirements, and enforcement provisions for consideration.
Kratom
Kratom is the common name for Mitragyna speciosa, a plant native to Southeast Asia. Traditional kratom is derived from the leaves of the plant and naturally contains psychoactive compounds, primarily mitragynine and smaller amounts of 7-hydroxymitragynine (7-OH), which may produce stimulant-like or opioid-like effects.
Kratom is commercially available as dried leaf, powders, capsules, extracts, liquids, concentrates, tablets, and other products. An important distinction exists between traditional botanical kratom and newer products containing synthetic or highly concentrated 7-OH. While 7-OH occurs naturally in kratom leaves in relatively small amounts, some commercially available products contain substantially higher concentrations. These higher-potency products have raised heightened public health concerns because of their stronger opioid-like effects and potential for dependency and misuse.
Kratom products are sometimes marketed for increased energy, mood enhancement, pain relief, or management of opioid withdrawal symptoms. The U.S. Food and Drug Administration (FDA) has not approved kratom for the treatment of any medical condition and has warned of potential adverse effects. Reported effects include liver toxicity, seizures, dependency or substance use disorder, and other serious health consequences.
Federal regulators have expressed particular concern regarding synthetic or highly concentrated 7-OH products because of their potency and potential for abuse.
State and Federal Regulation of Kratom
The regulatory status of kratom continues to evolve. The California Department of Public Health (CDPH) currently considers kratom and 7-OH products intended for human consumption unlawful to manufacture or sell in California under the State's food and drug regulatory framework. Nevertheless, these products remain available through smoke shops, gas stations, online sellers, and other retailers. In May 2026, CDPH and the California Attorney General initiated legal action against a kratom manufacturer alleging the manufacture and distribution of adulterated and illegal kratom-derived food products.
At the federal level, the FDA has not approved kratom as a prescription or over-the-counter drug and has taken enforcement action against companies marketing certain kratom and concentrated 7-OH products in violation of federal food and drug laws.
Federal regulators have also begun distinguishing traditional botanical kratom from higher-potency 7-OH products.
In July 2026, the federal Drug Enforcement Administration (DEA) announced its intent to temporarily place 7-OH above a specified concentration threshold, along with certain synthetic 7-OH-related substances, into Schedule I of the federal Controlled Substances Act. The proposed action focuses on concentrated and synthetic 7-OH and does not include ordinary botanical kratom containing naturally occurring 7-OH below the specified threshold. As of August 16, 2026, the federal scheduling process remains pending.
Pending California Legislation
Assembly Bill 1088 (Bains) proposes a State Kratom Consumer Protection Program that would establish product registration, laboratory testing, labeling and packaging standards, age restrictions, and limits on specified kratom alkaloids, including 7-OH. The bill would prohibit sales to persons under 21 years of age and would not authorize the sale of products otherwise prohibited by State or federal law. As of August 16, 2026, AB 1088 remains pending before the Legislature.
Rather than prohibiting all kratom products, AB 1088 reflects an approach that distinguishes among products based on factors such as composition, concentration, labeling, and consumer age.
Potential Local Regulation of Kratom
If the City Council wishes to pursue local regulation, the primary policy consideration is whether the City should regulate all kratom products or focus on synthetic or highly concentrated 7-OH products. The comprehensive approach would provide a simpler and more readily enforceable local standard because the City would generally need to determine whether a product is a kratom product, rather than determine its 7-OH concentration or whether the compound is naturally occurring, concentrated, or synthetic.
The targeted approach would more narrowly address the higher-potency products of greatest concern but would require more detailed product definitions, concentration thresholds, and methods for determining whether a particular product is subject to the City's regulations.
Under a comprehensive approach, the City could regulate or prohibit the commercial sale and distribution of all kratom products, including traditional botanical kratom and synthetic or highly concentrated 7-OH products.
Under a targeted approach, the City could regulate or prohibit synthetic 7-OH products and/or products exceeding an established 7-OH concentration threshold. The City's ordinance would not independently prohibit traditional botanical kratom solely because it contains naturally occurring kratom alkaloids. This would not constitute City authorization of its sale; traditional botanical kratom would remain subject to applicable State and federal laws and regulations. Under this approach, the City would establish an additional local prohibition focused on synthetic or higher-concentration 7-OH products while relying on State and federal law and enforcement with respect to traditional botanical kratom. Because applicability of the local ordinance would depend on a product's composition or concentration, enforcement may require review of product labeling, manufacturer information, testing documentation, or other evidence necessary to determine whether a product is subject to the City's regulations.
If the City Council directs staff to prepare a kratom ordinance, staff recommends that the Council provide direction as to whether it prefers the comprehensive or targeted approach summarized above.
Under either approach, traditional botanical kratom would remain subject to applicable State and federal laws and regulations. CDPH currently considers kratom products intended for human consumption unlawful to manufacture or sell in California under existing food and drug laws. At the federal level, FDA has not approved kratom for use as a drug and has determined that kratom is not lawfully marketed as a dietary supplement or food additive. The DEA's pending scheduling action, however, specifically targets synthetic and higher-concentration 7-OH and does not include botanical kratom containing naturally occurring 7-OH below the proposed threshold.
Staff would return with the appropriate definitions, concentration thresholds where applicable, exemptions, enforcement provisions, and other regulatory standards for City Council consideration.
Community Impacts
Recent Downey Police Department enforcement activity indicates that nitrous oxide misuse is also a local enforcement concern. During the past 18 months, the Police Department reported 26 arrests for possession of nitrous oxide. Beyond the potential health effects to individual users, misuse of nitrous oxide can create broader community impacts, including impaired driving, recreational use in public areas, discarded cylinders and canisters, litter, and other nuisance activity.
For kratom, community concerns primarily relate to the availability of psychoactive products with varying potency and composition, particularly synthetic or highly concentrated 7-OH products. Differences in product strength, formulation, labeling, and concentration may make it difficult for consumers to understand the potency or composition of products being purchased and may increase the potential for misuse.
Local regulation would provide clearer standards for retailers and additional enforcement tools to address the commercial sale and distribution of these products. For nitrous oxide, regulations could specifically address products and retail practices associated with recreational use while preserving legitimate uses. For kratom, the scope of local regulation would depend on whether the City Council selects a comprehensive or targeted regulatory approach.
Timeline
Based on the Community Development Department’ s 2026–2027 work plan, staff anticipates initiating the preparation of the ordinances through the Zoning Text Amendment process (ZTA) in November 2026. Once initiated, the project is expected to be completed within four (4) months.
Estimated Cost
The estimated cost to prepare the ordinances and conduct related research is approximately $ 15,000 based on consultant staffing rates.
Conclusion
Based upon staff's research, the City Council has several approaches available to address the retail availability of nitrous oxide and kratom. The Council may choose to take no further action and rely on existing State and federal regulations while monitoring pending legislation and regulatory actions, or direct staff to develop local regulations addressing nitrous oxide, kratom, or both substances. If the Council directs staff to regulate kratom, it may further direct staff to pursue either the comprehensive or targeted regulatory approach described in this report.
Should the City Council direct staff to proceed with local regulations, staff would return at a future meeting in April 2027 with the proposed ordinance or ordinances, including appropriate definitions, exemptions, concentration thresholds where applicable, enforcement provisions, penalties, and the associated California Environmental Quality Act determination for City Council consideration.
Environmental Analysis
Not subject to the California Environmental Quality Act pursuant to Section 15061( b)(3) of the CEQA Guidelines.
CITY COUNCIL PRIORITIES
Quality of Life, Safety & Infrastructure
Public Engagement
FISCAL IMPACT
There is no direct fiscal impact associated with consideration of this informational report. Should the City Council direct staff to prepare an ordinance, an appropriation of $15,000 from the General Fund - Reserve Balance will be required. The funds will be allocated to the Community Development Department’s Planning Division, Account No. 10-4-5110-0700 (Contract Services), within the FY 2026–2027 operating budget.
Additionally, staff would evaluate potential implementation and enforcement costs and identify any fiscal impacts when the proposed regulations return to the City Council for consideration.