Galaxy Gas Seeks Dismissal of Lawsuit Over Nitrous Oxide Death

Nitrous oxide manufacturer argues that Florida woman ignored warnings and intentionally misused its product, which should result in dismissal of the Galaxy Gas lawsuit.

A company that manufactures nitrous oxide gas containers, which are supposedly intended for cooking but widely sold at vape shops for illicit use, has filed a motion to dismiss a class action lawsuit, arguing that they cannot be held responsible for the illegal use of their products.

The motion to dismiss (PDF) was filed by Galaxy Gas and its parent company Pluto Brands on April 17, in response to a nitrous oxide class action lawsuit brought by Kathleen Dial in Florida’s Orange County Circuit Court earlier this year. 

Dial brought the lawsuit against Galaxy Gas and a number of different retailers, as the personal representative of the estate of Margaret O. Caldwell, who died in November after inhaling nitrous oxide behind a smoke shop.

Nitrous oxide, also known as “whippits” or “laughing gas,” is commonly used in medical and culinary settings. However, when inhaled recreationally, the gas can cause euphoria, hallucinations and other dissociative effects. As a result of the widespread recreational use, Galaxy Gas and other products are widely marketed and sold through vape shops nationwide. However, there is now growing evidence that prolonged or repeated use can lead to addiction, nerve damage, brain injury and even death.

Dial’s nitrous oxide lawsuit named a wide range of companies as defendants, including vape and smoke retailers like Galaxy Gas and others, claiming they knowingly manufactured and sold flavored, large-volume nitrous oxide products intended to be abused as inhalants.

In the motion to dismiss filed last week, Galaxy Gas indicates that it does not produce nitrous oxide for entertainment purposes, arguing that it should not be held responsible when someone intentionally misuses their products.

The company claims Galaxy Gas products contain clear warnings against inhaling nitrous oxide, but argues that Caldwell repeatedly purchased its gas from third-party retailers specifically for the purpose of using it against the labeling advice.

“The Galaxy Gas product is not a recreational inhalant, but a food-grade propellant intended for culinary use,” the motion states. “Not only does Galaxy Gas’ packaging describe the product as a ‘Food and Beverage Additive,’ but the Complaint also concedes that nitrous oxide has long-standing legitimate culinary uses.”

Despite being labeled as culinary tools, the lawsuit indicates Galaxy Gas and other popular nitrous oxide products are sold almost exclusively through vape shops and smoke retailers that cater to recreational users. The lawsuit indicates Caldwell thought the products were trendy and harmless, purchasing nitrous oxide canisters from at least seven different smoke shops in Florida.

Over time, she developed a severe addiction, often consuming the gas in the parking lots immediately after purchase. Employees at several shops allegedly noticed her frequent visits and even criticized her for leaving behind empty canisters, yet continued to sell to her. The lawsuit seeks an injunction on the sale of nitrous oxide throughout the state.

The original lawsuit also notes that selling more than 16 grams of nitrous oxide is a third-degree felony under Florida law (Fla. Stat. §877.111(4)), the lawsuit alleges that most of the products Caldwell purchased exceeded that limit. The complaint also accuses the manufacturers of illegally misbranding and adulterating the gas, arguing that by flavoring and packaging the products as if they were food items, the companies deceptively marketed a dangerous chemical as something safe.

Galaxy Gas indicates in the recent motion to dismiss that nowhere in the class action lawsuit does it claim that Galaxy Gas is defective or unsafe.

“Plaintiff attempts to repackage a deliberate act of self-harm to get ‘high’ as a product liability and consumer fraud case,” the motion states. “That admitted fact vitiates Plaintiff’s claims as a matter of law.”

The results of the lawsuit could have sweeping implications for both the vape retail industry and nitrous oxide regulation nationwide. If certified, the case could set a new precedent for holding retailers accountable for selling products that are widely misused, despite being technically legal.