Municipalities take steps against nitrous oxide abuse: Dortmund leads the way in North Rhine-Westphalia

On Thursday, 13 February 2025, Dortmund City Council passed a citywide ban on the sale and supply of nitrous oxide (commonly known as laughing gas). The aim is to prevent abusive consumption by minors. This is the city’s response to the failure of a standardised nationwide solution, which did not materialise in the current legislative period after the coalition government collapsed in November of last year. This approach could become a model for other municipalities, but also raises questions of jurisdiction.

A. Nitrous oxide widely used by young people as a recreational drug

Nitrous oxide is a chemical compound of nitrogen and hydrogen that is a gas at room temperature. Nitrous oxide has several commercial uses. For example, it is used in medicine as an anaesthetic due to its analgesic, relaxant and euphorigenic effect. However, due to these mind-altering effects, nitrous oxide is also misused as an intoxicant. In Germany, consumption has increased considerably in recent years, particularly among teenagers and young adults, as a study by Goethe University on drug use among young people in Frankfurt suggests. According to the study, 17% of 15 to 18-year-olds surveyed in 2022 had previously consumed nitrous oxide at some point. Some 6% of young people said they had consumed nitrous oxide within the past 30 days. In 2020, the lifetime prevalence among young people in Frankfurt was just 7% and the 30-day prevalence was 0.3%.

The easy availability of the intoxicant is likely to have contributed to this increase. Due to the increasing demand for nitrous oxide as a recreational drug, kiosks, vending machines and online mail order companies now sell nitrous oxide cartridges containing significantly more nitrous oxide than conventional whipped cream dispenser cartridges which are typically misused to consume the drug.

However, consumption harbours major health risks. For example, taking the drug can immediately lead to severe symptoms of impairment, which significantly increase the risk of accidents. Regular consumption can also lead to long-term neurological damage.

B. No nationwide ban so far on the sale of “technical” nitrous oxide

The fact that children and teenagers can even buy nitrous oxide despite these health risks is due to a legislative differentiation between “medical” and “technical” nitrous oxide. Medical nitrous oxide, which is used as an anaesthetic, is classified as a medicinal product within the meaning of the German Medicinal Products Act (Arzneimittelgesetz – AMG) and is subject to certain quality requirements in accordance with section 54 onwards of that Act. The placing on the market and use of medical nitrous oxide is punishable under section 95(1) no. 1 of the Act. By contrast, technical nitrous oxide is not governed by these legal restrictions. It is found in many everyday objects and is used, for example, as a food additive in spray cans for whipped cream. Sellers of nitrous oxide take advantage of this distinction by marketing the gas in technical quality as a cartridge for whipped cream dispensers. Specifying the product as being for household purposes means that the sale is not banned by the German Medicinal Products Act. The German New Psychoactive Substances Act (Neue-psychoaktive-Stoffe Gesetz – NpSG) and the German Narcotics Act (Betäubungsmittelgesetz) also do not prohibit the sale of technical-grade nitrous oxide. In view of this legal loophole, the Federal Ministry of Health felt legal action was needed and last year planned a nationwide ban on the purchase and possession of nitrous oxide to prevent its misuse as an intoxicant. Exceptions were planned for commercial, industrial and scientific uses. A corresponding bill was also passed by the federal cabinet in November 2024. However, due to the early elections following the collapse of the coalition, the law was not amended in the current legislative period.

C. Failure of federal regulation prompts local and regional bans on sale and supply

Both local authorities and federal states are now reacting to the lack of federal regulation by aiming to create their own bans on sales and supply at local and regional level.

Osnabrück City Council was the first major local authority to pass an ordinance banning the sale and supply of nitrous oxide to minors in the city at its meeting on 3 December 2024. This was published in the Osnabrück official gazette on 20 December 2024 and came into force on 1 January 2025. The ban also includes the operation of vending machines that offer nitrous oxide as a commodity and do not adequately stop underage buyers. Breaching this ordinance is an administrative offence punishable by a fine of up to €5,000.

The latest step in North Rhine-Westphalia has now been taken by the City of Dortmund with a regulatory ordinance dated 13 February 2025, which was published in the Dortmund official gazette on 14 February 2025. The city council decided to ban the sale as well as its supply and distribution against payment or free of charge of nitrous oxide to minors throughout the entire city area. In particular, the ban on distribution is intended to prevent persons of legal age from purchasing nitrous oxide for minors. The ban also covers the operation of vending machines that offer nitrous oxide as a product and do not provide sufficient technical protection against the use of the machine by minors. An intentional or negligent offence is punishable by a fine of up to €1,000. Dortmund cites the aim of protecting children’s and teenagers’ health as grounds for the ordinance.

Legally, the ordinance is based on section 27(1) and section 31(1) of the North Rhine-Westphalia Act on the Organisation and Powers of Public Order Authorities (nordrhein-westfälisches Gesetz über Aufbau und Befugnisse der Ordnungsbehörden – OBG NRW). While section 27(1) of this Act enables the municipality as the local regulatory authority to issue ordinances to avert danger, section 31(1) of the Act permits a standard fine for non-compliance. The central prerequisite for issuing a regulatory ordinance under section 27(1) of the Act is that there is an abstract danger to public safety and order, for which the City of Dortmund cites the health risks for children and teenagers from the consumption of laughing gas.

Other cities in North Rhine-Westphalia are also considering the option of municipal bans. The regulatory ordinance in Dortmund could therefore be followed by similar regulations in other municipalities. While North-Rhine-Westphalia, Germany’s most densely populated federal state, is therefore threatened by a patchwork of different municipal regulations, standardised solutions are being sought elsewhere in the form of state hazard prevention ordinances. In Hamburg, for example, a citywide ban on sale and distribution has been in force since 1 January 2025, which is almost identical in wording to the Dortmund ordinance, apart from setting a higher fine of up to €5,000 for breaches. The Hamburg Senate bases the enactment of an ordinance to prevent threats to public safety and order on section 1(1) and (2) of the Act for the Protection of Public Safety and Order (Gesetz zum Schutz der öffentlichen Sicherheit und Ordnung). Statewide bans on nitrous oxide are also planned in Schleswig-Holstein and Lower Saxony. In North Rhine-Westphalia, state law in section 26 of the North Rhine-Westphalia Act on the Organisation and Powers of Public Order Authorities endows the state government with the power to issue ordinances to avert danger, which could potentially be used as the basis for a statewide ban.

D. Are the federal legislators responsible for regulation?

It has not yet been clarified in court whether the municipalities and federal states have the necessary regulatory powers to legislate for a ban on the sale of nitrous oxide. Uncertainties about their own powers are making other North Rhine-Westphalian local authorities cautious.

Hazard prevention law is the responsibility of the federal states. This legislative competence as laid down in the regulatory laws of the federal states is the basis for the powers to issue ordinances. However, bans on the sale of narcotics could mainly relate to provisions of narcotics law and thus, in accordance with Article 74(1)(19) of the German Basic Law (Grundgesetz – GG), to a subject of competing legislation. Insofar as the federal government conclusively regulates a matter of competing legislation, in principle there is no room for legislation by the individual states. The federal provisions of the New Psychoactive Substances Act already comprehensively ban the acquisition and possession of numerous psychoactive substances and the necessary exceptions to those bans. In light of this, the issue of whether additional bans can be imposed by the federal states and municipalities for individual substances that are not yet subject to the scope of the New Psychoactive Substances Act is likely to be the subject of administrative court proceedings. As far as can be seen, this issue has not yet been discussed in detail in the legal literature.

If municipal and federal state nitrous oxide ordinances were found to be unlawful, this would have far-reaching consequences, as an unlawful ordinance – unlike an unlawful administrative act, for example – is not legally effective. Specific measures taken by the regulatory authorities against individual suppliers of nitrous oxide based on a municipal ban would also be unlawful, as these would be legally linked to the existence of a legally effective ban on supply.

E. Outlook

The bans on the sale of nitrous oxide issued by local and state authorities and the regulation envisaged by the Federal Cabinet show that political decision-makers see an urgent need for action in the interests of protecting health. To date, the local and state-specific regulatory instruments have focused on protecting minors, restricting commercial trade such that it is prohibited to sell and distribute nitrous oxide to children and teenagers. The last level of trade is primarily called upon hereto create security instruments and technical protection to effectively prevent sale and supply to minors.

Industrial usage, especially manufacturing and consumption, remains unaffected for the time being.

The next German federal government is also expected to address the issue of a ban on sale. It remains to be seen exactly what the regulation will look like in detail. In particular, it seems possible that nitrous oxide will be added to the annex to the New Psychoactive Substances Act, meaning that the purchase and possession bans already laid down there would be extended to include nitrous oxide. Such a regulation would be more far-reaching than the local bans that have now been passed, as it would also include a purchase ban for adults. However, a future coalition could also focus primarily on the protection of minors and – as with the regulation of alcohol and cigarettes – only prohibit the supply to children and teenagers. In this case, a corresponding localisation of the regulation in the Youth Protection Act (Jugendschutzgesetz) could be considered in order to tie in with the normative nature of the protection of minors. Ultimately, the legislators face the challenge of effectively limiting the misuse of nitrous oxide as an intoxicant without disproportionately restricting legitimate, everyday or commercial uses.

In particular, the federal legislators will therefore face the crucial decision not only on how to organise its regulation in detail in terms of laws, but also which areas it will primarily focus the regulation on. For the commercial and industrial fields of application in particular, it will be of central importance whether the regulatory objective of a ban on nitrous oxide will be limited to protecting minors, or whether the legislators will identify a comprehensive need for regulation that goes beyond this to prevent trade and non-medical use as a whole. In particular, laying down provisions in the New Psychoactive Substances Act would lead to a basic ban at both the production and trade level with only the exemptions specified in that Act. This makes it all the more important for the players involved to keep constant watch on the latest regulatory developments.

However, the legal uncertainties identified in connection with local and regional/state bans on nitrous oxide mean that both businesses and the public sector urgently need advice. Local authorities and federal states face the issue of whether local bans can be implemented with legal certainty and if so, how. Businesses that trade in nitrous oxide should consider how greatly their business model is affected by new bans on sale and, in particular, must monitor a fragmented legal situation that may differ not only between federal states, but even between municipalities.