The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Law & Government

"It's Illegal for People Under 21 to Buy Canisters of Whipped Cream in NY"

UPDATE (see end of post): Perhaps this is just an example of the "chilling effect," where a law deters even behavior that it may not actually cover (perhaps in part because of how the law's own backers had initially described it).


So NBC New York reports, discussing how stores are beginning to comply with this law, enacted last Fall:

1. "[W]hipped cream charger" shall mean a steel cylinder or cartridge filled with nitrous oxide (N2O) that is used as a whipping agent in a whipped cream dispenser.

2. No … business … shall sell or offer for sale a whipped cream charger to any person under the age of twenty-one.

3. Any … business within the state selling, offering for sale, or distributing whipped cream chargers shall require proof of legal age prior to allowing an individual to purchase or receive a shipment of whipped cream chargers. Such identification need not be required of any individual who reasonably appears to be at least twenty-five years of age, provided, however, that such appearance shall not constitute a defense in any proceeding alleging the sale or distribution of whipped cream chargers to an individual under twenty-one years of age.

4. Any … business … that violates the provisions of this section shall be subject to a civil penalty of not more than two hundred fifty dollars for an initial offense and not more than five hundred dollars for the second and each subsequent offense.

The rationale, from the Senate sponsor, Joseph P. Addabbo:

This new law is an important step in combatting a significant problem for many neighborhoods throughout my district. The need to limit the access and sale of whippits first became apparent after receiving constituent complaints about empty canisters on neighborhood streets. Used whippits piling up in our communities are not only an eye sore, but also indicative of a significant nitrous oxide abuse problem. This law will help to protect our youth from the dangers of this lethal chemical, while helping to clean up our neighborhoods….

Whipped cream chargers are filled with nitrous oxide which is often referred to as "laughing gas" and popularly used as an over-the-counter inhalant because of its euphoric effects. Dental professionals use the chemical during oral surgery to relieve pain but it is highly addictive and has detrimental effects if used improperly.

Studies have shown that younger people are most at risk when it comes to inhalants because they are inexpensive, easy to obtain, and may provide one of the easiest ways to get high. The gas-filled canisters are to be legally sold for cooking, baking and other proper home uses.

And from the Assembly sponsor, Stacey Pheffer Amato:

Our bill will greatly improve the quality of life throughout our state by removing the unused whipped cream canisters from our streets, and prevent their dangerous misuse—especially among our youth.

UPDATE (8/29/2022, 9:52 pm Pacific): The NBC New York story, from which the headline is borrowed, pointed to stores that interpreted the statute as barring sale of whipped cream to under-21-year-olds; and Sen. Addabbo's Oct. 29 press release quotes (as I noted above) his cosponsor saying the bill does apply to "whipped cream canisters." But Sen. Addabbo Tweeted today that  his "bill is not intended to prevent people under the age of 21 from buying whipped cream dispensers, but the small, individual charger or cartridge inside the whipped cream canisters that is the target of this law." (Thanks to reader Jordan Brown for the pointer.)

Perhaps this was the intent, and perhaps that's the best reading of the law—though one could certainly imagine a creative prosecutor arguing that selling a whipped cream canister containing a whipped cream charger constitutes selling the whipped cream charger. ("In theory, a youngster could buy a can of Reddi-wip, break it open and remove the cartridge of nitrous oxide," Addabbo reportedly said, though he also said "that's not his target.")

The stores' reactions described in the NBC story might thus reflect the famous "chilling effect," where a law leads cautious people to avoid even conduct that they worry might violate the law, even if it turns out that the conduct doesn't violate the law. At the same time, such a chilling effect is pretty foreseeable, especially when your own press release quotes your cosponsor saying that the law would remove "whipped cream canisters from our streets."