5.21Sale or Distribution of a Device Containing or Dispensing Nitrous Oxide

A.Statutory Authority

1.Generally

“A person shall not sell or otherwise distribute to another person any device that contains any quantity of nitrous oxide or sell or otherwise distribute a device to dispense nitrous oxide for the purpose of causing a condition of intoxication, euphoria, excitement, exhilaration, stupefaction, or dulling of the senses or nervous system.” MCL 752.272a(1).

2.Exceptions

MCL 752.272a(1) “does not apply to nitrous oxide that has been denatured or otherwise rendered unfit for human consumption or to any of the following:

(a) A person licensed under the food processing act of 1977, 1978 PA 328 . . .^[1] or chapter VII of the food law of 2000, 2000 PA 92, MCL 289.7101 to [MCL] 289.7137, who sells or otherwise distributes the device as a grocery product.

(b) A person engaged in the business of selling or distributing catering supplies only or food processing equipment only, or selling or distributing compressed gases for industrial or medical use who sells or otherwise distributes the device in the course of that business.

(c) A pharmacist, pharmacist intern, or pharmacy as defined in . . . MCL 333.17707, who dispenses the device in the course of his or her duties as a pharmacist or pharmacist intern or as a pharmacy.

(d) A health care professional.” MCL 752.272a(1).

B.Penalties

1.No Prior Convictions

Violation of MCL 752.272a is a misdemeanor punishable by:

•imprisonment for not more than 93 days; or

•a fine of not more than $100; or

•both. MCL 752.272a(2)(a).

2.Prior Convictions

If the person has one prior conviction, violation of MCL 752.272a is a misdemeanor punishable by:

•imprisonment for not more than one year; or

•a fine of not more than $500; or

•both. MCL 752.272a(2)(b).

If the person has two or more prior convictions, violation of MCL 752.272a is a felony punishable by:

•imprisonment for not more than four years; or

•a fine of not more than $2,000; or

•both. MCL 752.272a(2)(c).