Laughing gas may make you giggle, but the legal implications are no joke. As courts begin to scrutinize the marketing of nitrous oxide, a substance long associated with harmless fun, a new lawsuit is forcing manufacturers to face the serious consequences of their branding choices. This article will examine the implications of recent litigation seeking to hold nitrous oxide manufacturers strictly liable for harm caused by recreational misuse of their products.
A Florida class action lawsuit, Dial v. Fuego Smoke & Vape, is currently proceeding in the Circuit Court of the Ninth Judicial Circuit and takes aim at the nitrous oxide industry like never before. The plaintiff in the lawsuit argues that nitrous oxide manufacturers should be held responsible for marketing that leads to foreseeable recreational misuse of their product under a theory of strict products liability.[i]
What is Nitrous Oxide?
“Galaxy Gas,” “laughing gas,” or “whippets,” are terms used to put “a new spin on an old drug,” known as nitrous oxide.[ii] Galaxy Gas is just one of many nitrous oxide brands that are commonly featured in hundreds of videos on social media showing young people inhaling the gas to get high, with potentially dangerous (or deadly) consequences.[iii] Even a single use of the gas could lead to significant health concerns or even prove fatal.
How is Nitrous Oxide Dangerous?
Nitrous oxide is commonly known by the nickname “laughing gas,” but inhaling (also known as “huffing”) nitrous oxide is particularly dangerous despite its whimsical nickname. When inhaled, nitrous oxide acts as a dissociative anesthetic that deprives the brain of oxygen, which can induce euphoria or nerve damage. Heavy nitrous users can suffer severe health consequences ranging from headache, lightheadedness, palpitations, passing out and then, in some cases, death.[iv]
One example of the potentially fatal consequences occurred when an SUV driver accused of huffing nitrous oxide canisters passed out and killed a woman. The wrongful death lawsuit was filed in Missouri and the jury awarded $745 million to the family of the victim.[v] The jury in that case found the manufacturer and retailer of the nitrous oxide 90% at fault and the nitrous-oxide-using driver only 10% at fault.[vi]
Florida has criminalized both the “use” of nitrous oxide to get high and the “distribution” of amounts that might be used to get high.[vii] Inhaling nitrous oxide, or possessing nitrous oxide with intent to inhale it, is a second-degree misdemeanor.[viii] Distributing or selling more than sixteen grams of nitrous oxide is a third-degree felony.[ix] But these criminal justice enforcement laws only go so far, and due to the lack of effective regulation, civil litigation has emerged as a powerful tool to achieve accountability.[x]
What is Nitrous Oxide Used For?
To understand the legal stakes, it’s important to examine how nitrous oxide is marketed and used today. Manufacturers market nitrous oxide as a tool primarily used in the culinary world to create whipped cream quickly and efficiently.[xi] When inserted into a whipped cream dispenser, the charger releases nitrous oxide into the cream, creating light, airy textures that would be impossible to achieve through traditional methods.[xii] This process allows chefs to transform dense purees into delicate foams or turn liquid chocolate into a cloud-like mousse in seconds.[xiii]
Various brands of nitrous oxide canisters can be purchased online from major marketplaces including Walmart, Amazon and eBay.[xiv] These products are often marketed in colorful cylinders as whipped cream chargers, with flavors including “mango smoothie” and “vanilla cupcake.” [xv] These pressurized nitrous oxide products claim to be intended solely for culinary use but are often sold legally in stores that cater to recreational drug users.[xvi] Additionally, culinary professionals do not usually shop for cooking equipment at smoke shops with names like “Puff N Stuff” or “Condom Sense.”[xvii]
The plaintiff in the Florida case, Dial v. Fuego Smoke & Vape, argues that manufacturers add these flavors and use the colorful marketing campaigns to target “recreational users for inhalation rather than cooking.”[xviii] Although inhalant abuse is not new, drug abuse experts say the prevalence of smoke shops and availability of online shopping have made it easier for people to easily purchase nitrous oxide containers in large quantities.[xix]
What Claims Are at Issue in Dial v. Fuego Smoke & Vape?
Until now, businesses have been able to sell nitrous oxide over the counter if they say it’s for culinary use—and pretend not to know what customers are really doing with it.”[xx] The Dial v. Fuego Smoke & Vape case attempts to close this legal loophole and hold companies responsible when their products are used for recreational inhalation.[xxi]
Dial v. Fuego Smoke & Vape intends to hold manufacturers and retailers of nitrous oxide products responsible for the death of a nitrous oxide user.[xxii] The lawsuit alleges that the deceased, Margaret P. Caldwell (“Plaintiff”), purchased nitrous oxide products from the smoke shops named as defendants, and became addicted to nitrous oxide, which caused her to suffer severe health consequences, and ultimately succumb to her addiction.[xxiii]
The lawsuit alleges causes of action for (1) strict liability, (2) violations of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), and (3) unjust enrichment against the manufacturer defendants.[xxiv] Plaintiff also seeks declaratory and injunctive relief against the smoke shop defendants to prevent them from continuing to sell nitrous oxide products in the future.[xxv]
Who Are the Members in the Class Action?
The class action lawsuit was filed by Ms. Caldwell’s estate and is brought individually and on behalf of members of the class and subclass.
The class members are defined as residents of the United States who purchased products from “smoke shops” containing nitrous oxide that were manufactured by the defendants. “Smoke shops” are defined as:
“retailers whose main purpose is the sale of smoking and/or tobacco products . . . and smoking accessories for off-premises consumption at a retail establishment that either devotes a majority of its total floor area to smoking, drug, and/or tobacco paraphernalia including electronic cigarettes, electronic vapor devices, and sales nitrous oxide products.”[xxvi]
The subclass (also called the “Florida Subclass”) is limited to all residents of Florida who purchased nitrous oxide products manufactured by the defendants from “smoke shops.”[xxvii]
Defendants’ Attempts to Dismiss the Strict Liability Claims
After removing the case to federal court, the defendants filed motions to dismiss the case.[xxviii] Galaxy Gas, LLC (“Galaxy”) and Pluto Brands, LLC (“Pluto”), argued that Ms. Caldwell’s death, while “tragic” was the unfortunate consequence of her “alleged intentional inhalation of a nitrous oxide food and beverage additive to get ‘high’ despite warnings against such misuse.”[xxix] Galaxy and Pluto also argue the case should be dismissed because Ms. Caldwell’s “conduct was not only reckless but illegal.”[xxx]
Defendants argue that the strict liability claim fails because (1) plaintiff identifies no defect rendering the product unreasonably dangerous when used as intended and (2) plaintiff cannot plausibly allege a failure to warn, as the product packaging explicitly included several warnings.[xxxi] Defendants also argue that FDUTPA “precludes a plaintiff from bringing a claim for personal injury or death.”[xxxii]
Defendants argue that the alleged design defect must also “cause unforeseeable dangers during normal—that is, intended—use of the product.”[xxxiii] But, Plaintiff will likely counterargue that the product actually was used as intended because the defendants are exploiting a legal loophole to market and sell nitrous oxide for recreational purposes while pretending its being used for whipped cream.[xxxiv]
While Galaxy and Pluto claim that their products are intended for culinary use, the amount of their product being sold regularly “could provide thousands of servings of whipped cream” if it really was only used for culinary purposes.[xxxv] When asked in what situation someone would need that much whipped cream, a Galaxy representative said the product was sold in vape and sex shops because it was intended as an “erotic culinary lubricant” and that “some people may require that much for their purposes.”[xxxvi] Large distributors also “brand and flavor nitrous in ways that attract young inhalers, stock it with retailers catering to other vices, and sell it in quantities that are implausible for culinary use but ideal for huffing.”[xxxvii]
Defendants’ Attempts to Dismiss the Unjust Enrichment Claims
Defendants argue that the unjust enrichment claims must be dismissed for three reasons: (1) Plaintiff received the product she paid for and used it, even if she used it unlawfully; (2) Plaintiff does not allege that any benefit was directly conferred on Galaxy or Pluto, as required under Florida law; and (3) Plaintiff is barred from equitable relief because she has pled adequate legal remedies, premised on the same conduct, through her strict liability and FDUTPA claims.”[xxxviii
Manufacturers Can Use “Bitterant” to Deter Recreational Use of Nitrous Oxide
In support of their request for dismissal, defendants Galaxy and Pluto cite a factually distinguishable but instructive case: Grieco v. Daiho Sangyo, Inc.[xxxix] In Grieco, a driver hit a bystander after huffing a compressed air keyboard cleaner called Ultra Duster.[xl] When inhaled, Ultra Duster created feelings similar to nitrous oxide.[xli] However, unlike the defendants in Dial v. Fuego, the manufacturer in Grieco included an additive called a “bitterant” to deter the foreseeable misuse of their nitrous oxide product by making it “unpleasant for human consumption.” [xlii] Rather than simply include easily ignored warning labels, the bitterant acts as a “chemical deterrent” to stop people from abusing the product.[xliii]
The court in Grieco ultimately granted summary judgment in favor of defendants.[xliv] The court found that the manufacturers did not “control, encourage, or cause” the driver’s misuse of the nitrous oxide products. [xlv] The court also noted that the driver admitted that her addiction led her to ignore the warning labels and chemical deterrents of the product. [xlvi] Although “risk of a driver simultaneously abusing a dust-removal product and consequently striking either a vehicle or person off a roadway is within the boundless realm of conceivable possibilities” the court held that the driver’s criminal conduct was not foreseeable to the defendants as a matter of law. The continued misuse of inhaling the keyboard cleaner despite the manufacturer’s inclusion of the bitterant and warning labels was decisive to the Grieco court’s finding that “inhalation is not the product’s intended use.”[xlvii]
In stark contrast to the bitterant in Grieco, the manufacturer defendants in Dial v. Fuego intentionally add flavors to their nitrous oxide products that are designed to make them more pleasant for human consumption, which increases the foreseeable misuse of their product for inhalation rather than culinary purposes
Conclusion
The outcome of Dial v. Fuego Smoke & Vape has the potential to redefine how the law can hold “willfully ignorant” manufacturers and sellers responsible when the foreseeable misuse of their products causes injury or death. While Florida law typically shields manufacturers from liability when harm results from unintended use, the intended purpose of nitrous oxide canisters is murky. The use of enticing flavors and playful packaging—rather than deterrents—may suggest that inhalation is not just foreseeable but subtly encouraged. In this case, the spotlight may shift from “buyer beware” to “marketer beware.” Though the outcome of the case remains uncertain, manufacturers should be prepared for increased scrutiny of their marketing practices in Florida courts in the future.
[i] See Kathleen DIAL, as Personal Representative of the Estate Of Margaret P. Caldwell, individually and on behalf of all others similarly situated, Plaintiff, v. FUEGO SMOKE & VAPE LLC, Manki Investments LLC, Hywaze LLC, Outer Limits Sales Two LLC, A&a Smoke Shop LLC, Puffzilla LLC, and Givingo LLC, individually and as representatives of a defendant class, and Pluto Brands, LLC, Galaxy Gas, LLC, Dimo Hemp LLC, Fusion International Trading, LLC, United Brands, Inc., Sweet and Sour Holdings LLC, Monster Gas, Inc., and Baking Bad Group, Inc., Defendants., 2025 WL 880887 (Fla. Cir. Ct.) (“Dial v. Fuego Smoke & Vape”), now pending in federal court under case number 6:25-cv-00551 in the District Court for the Middle District of Florida.
[ii] Alex Clark, “The ‘Galaxy Gas’ trend whipping up controversy on social media”, CBS News (October 10, 2024), https://www.cbsnews.com/news/galaxy-gas-nitrous-oxide-social-media-controversy/ (last accesses May 27, 2025).
[iii] Id.
[iv] Id.
[v] Jennifer Rodriguez, “Family of Missouri woman killed in ‘huffing’ accident granted $745 million in lawsuit”, The Kansas City Star (September 12, 2023), https://www.kansascity.com/news/state/missouri/article279223694.html (last accessed May 27, 2025).
[vi] Id.
[vii] § 877.111, Fla. Stat. Ann.
[viii] § 877.111(1)-(3), Fla. Stat. Ann.
[ix] § 877.111(4), Fla. Stat. Ann.
[x] Amogh Dimri, “The Illegal Drug at Every Corner Store”, The Atlantic (February 3, 2025), https://www.theatlantic.com/ideas/archive/2025/02/nitrous-oxide-drug-loophole/681532/?gift=BcDsg0-eifNnEYjlx9oWdv3HE6caBHw2FJvC2-40Fw8 (last accessed May 27, 2025).
[xi] See, e.g., “The Role of Nitrous Oxide in Culinary Arts: Innovations in Food Preparation”, nexAir, https://www.nexair.com/learning-center/the-role-of-nitrous-oxide-in-culinary-arts-innovations-in-food-preparation/ (last accessed May 27, 2025).
[xii] Id.
[xiii] Id.
[xiv] Alex Clark, “The ‘Galaxy Gas’ trend whipping up controversy on social media”, CBS News (October 10, 2024), https://www.cbsnews.com/news/galaxy-gas-nitrous-oxide-social-media-controversy/ (last accesses May 27, 2025).
[xv] Id.
[xvi] Id.
[xvii] Amogh Dimri, “The Illegal Drug at Every Corner Store”, The Atlantic (February 3, 2025), https://www.theatlantic.com/ideas/archive/2025/02/nitrous-oxide-drug-loophole/681532/?gift=BcDsg0-eifNnEYjlx9oWdv3HE6caBHw2FJvC2-40Fw8 (last accessed May 27, 2025).
[xviii] Dial v. Fuego Smoke & Vape, 2025 WL 880887, at ¶ 40.
[xix] Rachel Hale, “College kids, an old drug, and why it’s everywhere again”, USA Today (January 14, 2025), https://www.usatoday.com/story/life/health-wellness/2025/01/14/why-this-viral-college-drug-trend-is-so-dangerous/77676984007/ (last accessed May 27, 2025).
[xx] Id.
[xxi] See generally Dial v. Fuego Smoke & Vape, 2025 WL 880887 (Fla.Cir.Ct.).
[xxii] Id.
[xxiii] Id. at ¶ 8.
[xxiv] Id. at ¶¶ 59-95.
[xxv] Id. at ¶¶ 59-95.
[xxvi] Id. at ¶ 53.
[xxvii] Id. at ¶ 53.
[xxviii] While many technical motions were filed disputing legal issues such as class certification or standing, the focus of this article is on the strict products liability claim, whether it is likely to be dismissed, and what the potential ramifications could be of continued litigation. Therefore, this article ignores other potential grounds for dismissal in the interest of maintaining a discussion of strict products liability.
[xxix] Dial v. Fuego Smoke & Vape, 2025 WL 1368140 (M.D. Fla.)
[xxx] Id.
[xxxi] Id.
[xxxii] Id.
[xxxiii] Grieco v. Daiho Sangyo, Inc., 344 So. 3d 11, 19 (Fla. Dist. Ct. App. 2022).
[xxxiv] Amogh Dimri, “The Illegal Drug at Every Corner Store”, The Atlantic (February 3, 2025), https://www.theatlantic.com/ideas/archive/2025/02/nitrous-oxide-drug-loophole/681532/?gift=BcDsg0-eifNnEYjlx9oWdv3HE6caBHw2FJvC2-40Fw8 (last accessed May 27, 2025).
[xxxv] Alex Clark, “The ‘Galaxy Gas’ trend whipping up controversy on social media”, CBS News (October 10, 2024), https://www.cbsnews.com/news/galaxy-gas-nitrous-oxide-social-media-controversy/ (last accesses May 27, 2025).
[xxxvi] Id.
[xxxvii] Amogh Dimri, “The Illegal Drug at Every Corner Store”, The Atlantic (February 3, 2025), https://www.theatlantic.com/ideas/archive/2025/02/nitrous-oxide-drug-loophole/681532/?gift=BcDsg0-eifNnEYjlx9oWdv3HE6caBHw2FJvC2-40Fw8 (last accessed May 27, 2025).
[xxxviii] Id.
[xxxix] See Grieco, 344 So. 3d 11 (2022); see also Dial v. Fuego Smoke & Vape, 2025 WL 1368140 (M.D. Fla.).
[xl] Grieco, 344 So. 3d at 15.
[xli] See id.
[xlii] Id.
[xliii] Id. at 16.
[xliv] Id. at 27.
[xlv] Id. at 27.
[xlvi] Id. at 27.
[xlvii] Id. at 20.
