KUALA LUMPUR, July 28 – A parliamentary committee today recommended that the proposed generational ban on tobacco and vape be delayed for three years, pending preparation for an enforcement framework that will require Parliament’s approval.
The bipartisan Dewan Rakyat special select committee (PSC) on health, science and innovation, chaired by Bandar Kuching MP Dr Kelvin Yii, said that the “generational end game” (GEG) for smoking and vaping should only start with those born after 2008, instead of the 2007 generation as proposed in the Control of Tobacco Product and Smoking Bill 2022.
The PSC told the government to amend the tobacco control bill, which was tabled for first reading in Parliament yesterday, by inserting a clause to enable two mandatory evaluations lasting three and 10 years each.
The first Mandatory Evaluation over a period of three years is aimed at assessing the government’s preparedness to fully implement the GEG and to evaluate the effectiveness of the implementation of the Control of Tobacco Product and Smoking Act (the law contains various other tobacco control measures besides the cohort-based ban on smoking and vaping that may be enforced at a later date).
Besides that, during the first Mandatory Evaluation, the government is to assess the need for separate regulations and Acts to separately regulate vape; non-combustible or smokeless tobacco products, such as chewing tobacco, snuff, snus, and dissolvable tobacco; and conventional smoked tobacco like cigarettes. The current Control of Tobacco Product and Smoking Bill regulates cigarettes, tobacco, and vape products together.
The PSC said the parameters for assessment during this three-year Mandatory Evaluation will be jointly determined between the Ministry of Health (MOH) and Parliament through the health, science and innovation committee.
“Full implementation of GEG will only be done after the mandatory evaluation is debated in Parliament,” Dr Yii said in a statement today, after tabling the PSC’s report on the tobacco control bill in Parliament.
The second Mandatory Evaluation will span a decade, where the government is to assess and analyse compliance and effectiveness of the Control of Tobacco Product and Smoking Act in combating smoking and reducing the number of smokers, besides adding new provisions based on emerging science and data if necessary.
“The Committee, in principle, agrees with the principle of the bill, especially to uphold the health and well-being of our people and future generations, as well as the need to expedite the regulation of tobacco products including vape, e-cigarettes and non-combustible tobacco products,” Dr Yii said.
“However, we acknowledge the different concerns raised by all stakeholders and see the importance of addressing certain implementation gaps, and to set a mandatory review and monitoring framework to ensure the Act achieves its intended target without causing any unintended consequences.”
The PSC expressed concern with wide enforcement powers granted under the Control of Tobacco Product and Smoking Bill, particularly against juveniles and children, including the power of authorised officers to check one’s bags for cigarettes, tobacco products, or vape under Section 30.
“The power to inspect, possibly body check and punish a child for possession must be heavily controlled to prevent abuse. That is why the guidelines for enforcement must be very clear and specific on this to ensure the vulnerable are not victimised by the law, especially the poor,” Dr Yii said.
He urged Health Minister Khairy Jamaluddin to include the PSC’s recommendations by revising the Control of Tobacco Product and Smoking Bill in order to “strengthen possible bipartisan support” for Malaysia’s first ever proposed principal tobacco control legislation.
With the government’s slim majority in the Dewan Rakyat and with support from government backbenchers not yet fully assured, the health PSC potentially has the power to swing votes, especially from fence-sitters who may defer to the committee on technical health-related legislation.
Case Study Of Failed Bhutan Smoking Ban
The PSC also stressed in its report that the government should increase efforts in combating the illicit cigarette trade “in order to effectively implement the generational end game and fulfil programme objectives”.
“The committee stresses that the responsibility of curbing the sale of illegal and smuggled cigarettes lies not with just one party, but requires cooperation from all related parties and this responsibility spans related ministries and agencies,” said the PSC.
The parliamentary committee told the government to conduct a case study on the effectiveness of smoking bans in other countries, citing Bhutan as an example with a reference to a 2011 review in the International Journal on Drug Policy.
The review of Bhutan’s national cigarette sales prohibition law in 2004 concluded that the smoking ban in the tiny country, with a population of less than a million, failed to eliminate or nearly eliminate cigarette consumption and that illegal tobacco smuggling, including black market sales, due to the sales ban in Bhutan remained robust. Bhutan eventually repealed its tobacco ban during the Covid-19 pandemic.
On regulating the sale of cigarettes, the PSC recommended that the government conduct a special study on the effectiveness of vending machines with AI technology like face recognition, identification of ID, and online payment mechanisms.
“This study should be based on real-world data and comparison of the effectiveness of implementation by other countries that have used this method.”
No Criminalisation Of Individual Possession, Community Service Mooted
The PSC “strongly” recommended that penalties imposed on juveniles under the Control of Tobacco Product and Smoking Bill do not involve incarceration; neither should offences involving teenagers be recorded in any existing system.
“This means no criminalisation for our youth for possession,” Dr Yii said in his statement.
Instead, the Dewan Rakyat health, science and innovation committee recommended alternative penalties for minors under the tobacco control legislation like community service, mandatory counselling sessions, and a reasonable fine based on a tier system for first-time offenders with clear guidelines.
The Control of Tobacco Product and Smoking Bill criminalises individual consumer purchase, possession, and use of tobacco and vape products, as well as smoking or vaping, by anyone born from January 1, 2007, with a maximum RM5,000 fine upon conviction.
Young people subject to enforcement under the GEG would be aged 18 years or younger, who would be prohibited from (ever) legally buying cigarettes or vape products, or to smoke or vape, in their lifetime.
The proposed law empowers the minister to decide which offences can be compounded. As compounds cannot exceed 50 per cent of the maximum fine the offender would have been liable to on conviction, a compound of the offence for smoking or vaping, or for personal possession of tobacco or vape products, can be set at a maximum of RM2,500.
Section 53 empowers the minister to make regulations on various matters in the principal legislation. These regulations under the Act – including over 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.
Consider Vape As Harm Reduction Alternative, Expand NRT Access
In suggesting a review – during the three-year Mandatory Evaluation – of the need for legislation to govern non-combustible tobacco products and vape separately from smoked tobacco, the PSC said in its report that non-combustible tobacco products and vape have “harm reduction” characteristics compared to combustible tobacco products.
The PSC’s report cited Public Health England’s 2015 press release that said an expert independent evidence review found that e-cigarettes are around 95 per cent less harmful than smoking.
“There is no evidence so far that e-cigarettes are acting as a route into smoking for children or non-smokers,” stated the comprehensive review commissioned by Public Health England that found almost all of the 2.6 million adults using e-cigarettes in Britain are current or ex-smokers who are using the devices to help them quit smoking.
The health, science and innovation PSC recommended that the government consider treating vape or e-cigarettes as a less harmful alternative to help smokers quit – like what is done in countries like New Zealand, South Korea, the United Kingdom, and Canada – citing studies that show the effectiveness of such products as “harm reduction”.
“The Committee recommends that the government undertake comparative studies with countries that have legislation or policies related to non-tobacco smoking products, such as electronic cigarettes or vape, on the effectiveness of these products as an alternative for smokers that can reduce the number of smokers in Malaysia.”
In recommending studies on the potential need for separate legislation to govern e-cigarettes and vape, the parliamentary committee said regulation of non-combustible tobacco products should refer to the evidence-based and harm reduction approach taken by the UK’s National Institute for Health and Care Excellence (NICE).
According to the NICE release dated June 2021 cited by the PSC, NICE and Public Health England jointly developed a draft guideline to tackle the health burden of smoking, stating that people should be able to choose to use e-cigarettes as one of several options to support smoking cessation.
“The draft recommendations advise that, combined with behavioural support, the option of either a combination of short- and long-acting NRT or nicotine-containing e-cigarettes are more likely to result in people successfully stopping smoking,” said NICE.
The PSC also called for nicotine replacement therapy (NRT) products to be openly marketed over-the-counter (OTC) and to be made easily available. Smoking cessation products, like nicotine gum or patches, are currently not available OTC in Malaysia, as they can only be dispensed by a medical practitioner or pharmacist.
“This method will help encourage smokers to quit smoking without needing to visit a health centre.”
The parliamentary committee urged the government to also implement the following measures on a continuous basis:
- Increase financial allocations based on studies for the implementation of MOH’s quit-smoking programme, mQuit.
- Scientific studies and continuous health advocacy education for the young generation so that they are aware and choose a healthy and smoke-free lifestyle.
- Support for scientists and academics for research on new smoking products like e-cigarettes.
- Impose and increase taxes on manufacture and sale of vape, with at least 10 per cent from tax revenue collection to be earmarked for the mQuit programme.
Health PSC’s Consultations With Health Groups, Industry
The Health PSC consulted various medical research centres, think tanks, and civil society groups on the tobacco control bill that MOH first presented to it last April 7, as well as tobacco companies and vape industry representatives.
CodeBlue understands that the version of the tobacco bill tabled by Khairy in Parliament yesterday differs from the initial version presented to the parliamentary committee.
In Malaysia, draft bills are classified as state secrets until they are tabled in Parliament, preventing the public and stakeholders from giving their views on proposed legislation until formal presentation in the House.
Proceedings of parliamentary committees, including the health PSC, are also classified and not broadcast to the public, unlike the Westminster system in the UK.
MOH’s presentation on the tobacco bill was made at the PSC’s hearing last April 7 that was attended by representatives from:
- Science, Technology and Innovation Ministry
- Federation of Private Medical Practitioner’s Associations Malaysia (FPMPAM)
- Malaysian Council for Tobacco Control and Action on Smoking and Health Committee Malaysian Medical Association (ASH, MMA)
- Malaysian Women’s Action for Tobacco Control and Health (MyWatch)
- Addiction Medicine Association of Malaysia (AMAM)
- Galen Centre for Health and Social Policy
- Asthma Malaysia
- University of Malaya Centre of Addiction Science Studies (UMCAS)
On April 14, the PSC consulted multinational tobacco companies for their views on the tobacco control bill as tobacco-related stakeholders:
- Philip Morris (Malaysia) Sdn Bhd
- JT International Berhad
- British American Tobacco (Malaysia) Bhd
Last May 24, the PSC consulted the following stakeholders on non-tobacco smoking products, including vape companies Relx International and NASTY Worldwide:
- Asthma Malaysia
- Galen Centre for Health and Social Policy
- Malaysia Retail Electronic Cigarette Association
- Advanced Centre for Addiction Treatment Advocacy (ACATA)
- Malaysia Society for Harm Reduction (MSHR)
- Dewan Perniagaan Vape Malaysia (DPVM)
- Malaysian Vape Chamber of Commerce
- Malaysian Green Lung Association (MGLA)
- Relx International
- NASTY Worldwide