San José Is Cracking Down on Smoke Shops and Sales of Nitrous Oxide ‘Whip-Its’

San José lawmakers are aiming to crack down on the proliferation of smoke shops and the sale of nitrous oxide canisters, or “whip-its.”

The City Council unanimously passed two ordinances on Tuesday to tackle the twin problems. The first immediately bans the sale and distribution of nitrous oxide in smoke shops and similar retail businesses, and the second enacts a 45-day moratorium on the new tobacco retail licenses, a move designed to give the city time to strengthen its regulations.

Nitrous oxide, also known as laughing gas, can often be found in smoke shops, sold in small metallic cartridges meant for whipped cream dispensers or larger canisters with colorful labels and brand names like Galaxy Gas and Miami Magic. Although selling nitrous oxide for recreational use is illegal in California, these products are typically labeled for “culinary use” only.

Officials are calling it a growing public health issue among youth, especially due to its easy accessibility. Inhaling nitrous oxide recreationally, which can deliver a short, euphoric high, poses “serious health risks, including neurological damage and in some cases, death,” Rachel Roberts, San José’s deputy director of code enforcement, said during Tuesday’s meeting.

Council members argued the ordinances were a critical response to a “dramatic rise” in unregulated smoke shops, particularly in working-class neighborhoods, and are intended to fix what city memos called “historically weak” enforcement.

“These two actions … are deeply connected,” said Councilmember Peter Ortiz, whose district includes East San José, which has the highest concentration of smoke shops in Santa Clara County. “Nitrous oxide is directly connected to these smoke shops because that’s where they’re being sold.”

The problem of overconcentration is stark, particularly in East San José. Data from this year’s Santa Clara County Latino Health Assessment cited by Ortiz shows his district has 6.7 tobacco retail outlets per square mile, “more than double the countywide average.”

“You throw a rock in East San José, you’re going to hit a smoke shop,” Ortiz said during the meeting, noting these businesses are “targeting our Latino community.”

The moratorium on new tobacco licenses is intended to pause this growth while the city addresses loopholes. Roberts reported that of 101 smoke shop businesses with active complaints, 30 are operating without a tobacco license and 35 have neither a tobacco retail license nor a business tax certificate.

A memo co-signed by Councilmember Anthony Tordillos and others argued that past enforcement has been ineffective, with “modest fines that fail to deter repeat offenses.”

“Part of the reason there was the disconnects between different levels of government,” Tordillos said in an interview.

He explained that the state law banning recreational sales of nitrous oxide was not strongly enforced in San José, a gap the new city-level ban is designed to close. “It becomes much easier for SJPD and the Code Enforcement department to follow up,” Tordillos said.

Councilmember Michael Mulcahy agreed, adding that the city must send a message. “We have to make it clear that there’s a much greater risk than getting a ticket,” he said.

The new ordinances lay out a “two-pronged approach” for enforcement, coordinated between Code Enforcement for civil remedies and the Police Department for criminal matters, Roberts said. Penalties now include revoking tobacco licenses and holding property owners jointly liable for violations, a change Mulcahy called “another bit of insurance.”

Several council members warned that the issue is broader than just tobacco and whip-its, describing many shops as “front businesses.”

“We’ve seen unpermitted cannabis sales, [and the] growing risk posed by synthetic cannabis products,” Tordillos said. An August police raid, cited in the council memo, seized hundreds of nitrous oxide canisters alongside an illegal firearm.

But for proponents, the focus now shifts entirely to execution.

“A temporary pause isn’t enough,” resident Erica Murphy said during public comment. “San José needs regular proactive enforcement…. Right now, San José lacks the staffing to monitor even licensed shops.”

Ortiz echoed this sentiment.

“We need to make sure that we hire more code enforcement officers that are assigned to these specific projects. We need to have a wave of enforcement across the city,” he said.