“Sniffing glue” is not as common as it once was, but it is an example of getting high by using a legal substance. Nitrous oxide (commonly known as “laughing gas”) is probably the most widely abused substance that falls into that category. Although nitrous oxide stored in tanks is used by dentists, dairy farmers, and welders, nitrous oxide that is used recreationally is typically released from small canisters, called “whippets,” that are used to dispense whipped cream.

Texas criminalizes the recreational use of nitrous oxide and certain other legal substances that are not categorized as controlled substances or drugs. Texas law identifies those substances as “abusable volatile chemicals.”

Abusable Volatile Chemicals

An “abusable volatile chemical” is:

  • Nitrous oxide; and
  • Spray paint and other chemicals that —
  • When ingested or inhaled, produces an effect similar to intoxication or otherwise alters thinking, balance, or eyesight; and
  • Is required by federal law to be labeled with a warning that is similar to “Vapor Harmful.”

Exceptions generally include regulated pesticides, food, drugs, cosmetics, and alcoholic beverages.

Possession and Use of Abusable Volatile Chemicals

It is a crime in Texas to use an abusable volatile chemical to get high. More specifically, abusable volatile chemicals may not be used contrary to safety instructions that appear on a product label in a way that is intended to:

  • Affect the central nervous system; or
  • Create or induce a condition of intoxication, hallucination, or elation; or
  • Change, distort, or disturb the person’s eyesight, thinking process, balance, or coordination.

It is also a crime to possess an abusable volatile chemical with the intent to use it to get high. Using an abusable volatile chemical unlawfully, or possessing it with the intent to use it unlawfully, is a Class B misdemeanor, punishable by a jail sentence of not more than 180 days and/or a fine.

Delivery of Abusable Volatile Chemicals to a Minor

It is a crime in Texas to knowingly deliver an abusable volatile chemical to a person who is younger than age 18. The law effectively makes it a crime to sell certain kinds of glue and spray paint to a minor.

A person accused of delivering an abusable volatile chemical to a minor has a defense if:

  • Other chemicals or substances have been added to the abusable volatile chemical that discourage inhalation of the product; or
  • The manufacturer of the product failed to affix a required warning label.

A person accused of delivering an abusable volatile chemical to a minor has an affirmative defense (meaning the defendant must present evidence in support of the defense) if:

  • The accused is an adult who had supervisory responsibility over the minor, the adult actually supervised the minor’s responsible use of the product, and the adult took back the product containing the product when the minor finished using it; or
  • The minor looked like an adult and presented fake identification to the accused before acquiring the product.

If the delivery is not made by a retail sales vendor holding a sales tax permit, the crime of delivering abusable volatile chemicals to a minor is a state jail felony, punishable by a state jail sentence of not less than 18 months or more than 2 years.

If the delivery is made by a retail sales vendor holding a sales tax permit (or by the vendor’s employee), and —

  • The vendor held a valid abusable volatile chemical sales permit, the crime is a Class B misdemeanor, punishable by a jail sentence of not more than 180 days and/or a fine.
  • The vendor did not have a valid abusable volatile chemical sales permit, the crime is a class A misdemeanor, punishable by a jail sentence of not more than 1 year and/or a fine. A second offense, however, is a state jail felony.

Inhalant Paraphernalia Offenses

Any device or combination of products that is used or intended for use to inhale or ingest abusable volatile chemicals is “inhalant paraphernalia.” For instance, a device that is used to release nitrous oxide from a whippet, and the balloon that holds the nitrous oxide after it is released, could be classified as inhalant paraphernalia.

It is a crime to knowingly use, or possess with intent to use, inhalant paraphernalia to introduce abusable volatile chemicals into the human body. The use or possession with intent to use inhalant paraphernalia is a Class B misdemeanor, punishable by a jail sentence of not more than 180 days and/or a fine.

It is a crime to knowingly —

  • Deliver or sell;
  • Possess with the intent to deliver or sell; or
  • Manufacture with the intent to deliver or sell

inhalant paraphernalia, if the person who commits that act knows that the person who receives or who will receive the inhalant paraphernalia intends to use it to ingest or inhale abusable volatile chemicals. The delivery, possession with intent to deliver, or manufacturing of inhalant paraphernalia is a Class A misdemeanor, punishable by a jail sentence of not more than one year and/or a fine.

Regulatory Offenses

Sellers of abusable volatile chemicals are required to abide by certain regulations. Failing to abide by certain regulations is a crime. It is a crime for a business establishment to fail to post a conspicuous sign in English and Spanish warning customers that intentionally inhaling or ingesting an abusable volatile chemical is a Class B misdemeanor, and that selling abusable volatile chemicals to minors is a state jail felony. Failing to post the required sign is a Class C misdemeanor, punishable by a fine.

It is a crime for any person to sell an abusable volatile chemical to an adult without having a valid permit that authorizes the sale. Selling an abusable volatile chemical to an adult without a permit is a Class B misdemeanor, punishable by a jail sentence of not more than 180 days and/or a fine.