KUALA LUMPUR, July 27 – The Control of Tobacco Product and Smoking Bill 2022, touted to create a smoke-free generation in Malaysia, criminalises individual consumer purchase, possession, and use of cigarettes and vape by those born from 2007.
The proposed standalone tobacco control law provides a maximum RM5,000 fine against individual consumers for the purchase, possession, and use of tobacco and vape products by future generations who would be prohibited, under a cohort-based ban, from smoking or vaping ever in their lifetime.
This means that should Parliament approve the bill that was tabled by Health Minister Khairy Jamaluddin for first reading in the Dewan Rakyat today, teenagers and children currently aged 15 years and younger – will face criminalisation under the “generational end game” (GEG) law for buying or using a substance that is legally permitted to everyone else.
If the GEG is enforced in 2025 – starting with the 2007 generation – the pool of individual consumers facing enforcement under the proposed Tobacco and Smoking Control Act would be aged 18 years and under, before expanding to 19-year-olds the subsequent year and so on.
According to Section 13(3) of the Tobacco Product and Smoking Bill, anyone born from January 1, 2007, is prohibited from purchasing “any tobacco product, smoking substance, substitute tobacco product, or smoking device” that is an offence punishable with a maximum RM5,000 fine upon conviction.
Section 17(1) prohibits those born from January 1, 2007, from smoking any tobacco product or substitute tobacco product; using any smoking device; or possessing any tobacco product, smoking substance, substitute tobacco product, or smoking device. Convicted offenders are liable to a fine not exceeding RM5,000.
Section 54(1)(b) states that the offences listed in Section 13(3) and Section 17(1) for individual consumer purchase, possession, use, and smoking also apply to those born before January 1, 2007, who have yet to reach the age of 18 on the date the Act comes into operation. These minors face a fine of up to RM1,000 upon conviction.
“Smoking substance” is defined in the proposed Act as “any substance or combination of substance comprising of propylene glycol, glycerol, or triethylene glycol for the purpose of smoking”. Nicotine is not included in this definition, which means that zero-nicotine vape juices would also fall under the category of “smoking substance” besides nicotine-containing e-liquids.
The bill considers vaping to be the same as “smoking” and includes the act of holding a cigarette or vape pen, without actually smoking or vaping, as “smoking”. “Smoking” is defined as “inhaling and expelling the smoke or vapour, of any tobacco product or substitute tobacco product, and includes the holding of or control over any tobacco product or substitute tobacco product which is ignited, heated or vaporised or used in any other methods”.
“Substitute tobacco product” is defined as “any product, with or without any smoking substance, intended for smoking which is not a tobacco product”.
“Smoking device” refers to “any electronic device or a battery-operated device or other device, including hookah, which is used to heat, vaporise, or burn a tobacco product, smoking substance, or substitute tobacco product for smoking”.
The Control of Tobacco Product and Smoking Bill 2022 does not make a single mention of the word “nicotine”.
Unlike nicotine, illegal narcotics listed under the Dangerous Drugs Act 1952 – such as marijuana, heroin, methamphetamines, or cocaine – are prohibited to everyone in Malaysia regardless of age or generation.
Section 48(1) of the Control of Tobacco Product and Smoking Bill allows the health minister to determine which offences can be compounded, with approval of the public prosecutor. Compounds of offences do not have a minimum quantum, but cannot exceed 50 per cent of the maximum fine the offender would have been liable to on conviction.
This means that should the minister allow compounds of smoking and individual consumer purchase, possession, and use of tobacco or vape products by the “end game generation”, schoolchildren and college-going youths aged 18 or older – during the first few years of the GEG – face maximum RM2,500 compounds of such offences.
However, under Section 48(4), if these minors and young adults fail to pay their compounds, they face prosecution.
Section 53 empowers the minister to make regulations on various matters in the principal legislation. These regulations under the Act – including on the prohibition of sale and individual consumer purchase, possession, consumption, or smoking for those born from January 1, 2007 – may prescribe penalties of a fine not exceeding RM200,000, imprisonment of up to 10 years, or both.
Malaysia’s current tobacco control regulations under the Food Act 1983 do not criminalise possession or use of tobacco products by individual users aged below 18, the current legal smoking age; only the sale of tobacco products is prohibited to minors.
Section 16 of the Control of Tobacco Product and Smoking Bill proposes a maximum RM5,000 fine upon conviction for those who smoke in designated non-smoking areas.
Under Section 18, proprietors of non-smoking places are subject to a fine of up to RM5,000 upon conviction if they fail to display a no-smoking sign, if they provide smoking equipment or facilities, or if they fail to take all reasonable measures to prevent people from smoking in their premises.
Jail For Sale Of Tobacco Or Vape To 2007 Generation
The Control of Tobacco Product and Smoking Bill criminalises the sale of “any tobacco product, smoking substance, substitute tobacco product, or smoking device”, as well as the provision of “any services for smoking”, to anyone born from January 1, 2007.
These offences under Section 13(1) are liable to incarceration upon conviction. Individual offenders face a fine not exceeding RM20,000, or imprisonment for up to one year, or both for the first offence. Second or subsequent offences are punishable with a fine of up to RM30,000, or a jail term not exceeding two years, or both.
For body corporate offenders, they are liable to a fine of between RM20,000 and RM100,000, imprisonment of up to two years, or both for the first offence. Second or subsequent offences are punishable with a fine of between RM50,000 and RM300,000, a jail term not exceeding three years, or both.
Section 54(1)(a) extends the prohibition on the sale of any tobacco product, smoking substance, substitute tobacco product, or smoking device, as well as the provision of smoking services, to those born before January 1, 2007, who have yet to turn 18 when the Act comes into effect.
Offences under that provision are punishable with a fine not exceeding RM10,000, jail of up to two years, or both.
Article 49(1)(b) presumes guilt by companies or corporations that shall be liable to the same penalty as an individual unless they prove that the offence was committed without their knowledge, or that the offence was committed without their consent and that they had taken all reasonable precautions and exercised due diligence to prevent the commission of the offence.
A director, compliance officer, partner, manager, secretary or other similar officer of the company are liable for prosecution of offences by body corporate.
No Advertising Of Vape As A Quit-Smoking Product
Section 7(1) of the Control of Tobacco Product and Smoking Bill prohibits the advertisement of a “tobacco product, smoking substance, or substitute tobacco product as a quit-smoking product”.
Section 7(2) similarly bans the advertisement of a “smoking device” as a “quit-smoking product”.
These provisions effectively kill the local vape industry’s hopes of promoting vape or e-cigarettes as a harm reduction alternative to smoking tobacco.
The clauses on advertising also prohibit advertisements in general on a tobacco product, smoking substance, substitute tobacco product, or smoking device that is “intended or likely to encourage any person to smoke”.
Section 8(1) and Section 11(1) prohibit the advertisement and sale of “any imitation of tobacco product, smoking substance, or substitute tobacco product” respectively.
Promotion or sponsorship of “any tobacco product, smoking substance, substitute tobacco product, or smoking device, which is intended or likely to encourage any person to smoke or to be promoted as a quit-smoking product”, is similarly prohibited.
Presumption In Label And Packaging Matters
Section 19 of the Control of Tobacco Product and Smoking Bill presumes that a package containing any tobacco product, smoking substance, substitute tobacco product, or smoking device is imported, manufactured, or packed by the importer, manufacturer, or distributor – or the owner of such rights – whose name, address, or registered mark is found on the package.
Section 20 requires every manufacturer, importer, or distributor of such products to provide “any information” on these products to enforcers. Non-compliance by individuals is punishable with a fine not exceeding RM10,000, imprisonment of up to one year, or both; whereas offences by body corporate are liable to a fine of between RM10,000 and RM50,000, incarceration not exceeding one year, or both.
Acute Or Critical Situation Endangering Life Or Health
Section 21 of the Control of Tobacco Product and Smoking Bill empowers the minister, on advice by a committee, to ban the import, manufacture, distribution, or sale of a tobacco product, smoking substance, or substitute tobacco product whose consumption is related to an “acute or critical situation” that may “seriously endanger” people’s lives, health, or safety in Malaysia.
Advance Notice Of Expert Evidence In Court, Protection From Lawsuits, Search And Seizure Without Warrant
Part 9 of the Control of Tobacco Product and Smoking Bill provides for wide enforcement powers that are protected from civil lawsuits and other legal proceedings.
Section 50 prohibits litigation against authorised officers enforcing the Act, “unless it can be proven that the act was done or omitted to be done in bad faith”.
Section 51 indemnifies the government from damages as a result of an entry, search or seizure made under the Act, “unless the damage was caused by the wilful neglect or default” of a public officer.
Section 25 provides an authorised officer with the powers of a police officer.
Authorised officers have the power to conduct a search and seizure without a warrant and to access recorded information or computerised data.
Under Section 38, the cost of holding any tobacco product, smoking substance, substitute tobacco product, and smoking device, among others, in custody shall be recoverable as a civil debt due to the government.
On producing expert evidence in court, Section 42 requires a person charged with an offence to inform the prosecution in writing – within 10 days before the trial – of their intention to adduce expert evidence and to disclose the name of the expert and the nature of the expert evidence, as well as to furnish a copy of any document that the expert proposes to adduce at the hearing.
The tobacco control bill also protects informers from being disclosed by witnesses at a civil or criminal proceeding, besides allowing the evidence of agent provocateur to be admissible in court.
Section 46 does not require authorised officers to disclose facts or to produce documents that are considered to be against public interest or that would compromise the protection of a witness.
Plain packaging rules, which typically require tobacco packages to have a standardised appearance without any branding or logos, are not included in the Control of Tobacco Product and Smoking Bill.
Section 1 of the Control of Tobacco Product and Smoking Bill allows the minister to set different dates to enforce different provisions of the Act. The Act comes into operation on a date to be appointed by the minister.
This means that the health minister may set 2025 to enforce the provisions related to the GEG, while choosing to put into effect other clauses earlier once Parliament approves the bill.
Khairy said recently that delaying the generational ban on tobacco and vape to the 2007 generation, instead of the initially proposed 2005 generation, would allow extra time of two years for community education, a “robust implementation plan”, and ramped up enforcement.