KUALA LUMPUR, March 31 – The Poisons Board has unanimously opposed the government’s proposal to declassify liquid nicotine as a controlled substance in a bid to tax e-cigarettes and vape from tomorrow.
The independent body – which was established under the Poisons Act and serves to advise the health minister – made the decision during a meeting last Wednesday that discussed the proposed exemption of liquid or gel nicotine used in e-cigarettes and vape from control under the Poisons Act 1952.
A source, who attended the Poisons Board meeting, said the meeting was called unusually in less than 24 hours, pointing out that even during the Covid-19 pandemic, the board had always received two weeks’ notification for any meeting, including to approve drugs.
“We were told that the intent to round up the Poisons Board was to get the Poisons Board to say ‘yay’ or ‘nay’ on the exclusion – for nicotine to be removed from the Poisons List. It seems that MOF (Ministry of Finance) wants to collect the tax as of 1st April,” the source told CodeBlue on condition of anonymity, as they were not authorised to speak to the press.
The Poisons Board, which includes representatives not just from the health care sector but also business, voted “nay” – in one voice. Health director-general Dr Noor Hisham Abdullah did not attend the Wednesday meeting that was attended by at least seven members of the Board.
According to slides presented by the Ministry of Health’s (MOH) Pharmaceutical Services Programme (PSP), as the secretariat of the Poisons Board, to enable excise duties on e-cigarette or vape liquids containing nicotine, MOF has requested MOH to exempt nicotine used in e-cigarette and vape liquids or gel from control under the Poisons Act.
“This exemption will provide access to users of electronic cigarettes and vape to use liquids or gel with nicotine, as well as to local manufacturers to produce the related products lawfully,” stated MOH’s PSP in its presentation slides at the Poisons Board meeting, as sighted by CodeBlue.
“Besides that, as stated in the Budget, the implementation of the excise duties is in line with the government’s intention to support the spirit of the generational end game (GEG), where half of the revenue from the excise duty will be earmarked for the Ministry of Health as an effort to increase effective anti-smoking services and campaigns,” PSP added, quoting from Prime Minister and Finance Minister Anwar Ibrahim’s speech when he tabled Budget 2023 last February.
The source who attended the Poisons Board meeting told CodeBlue that some MOH officials were also opposed to exempting liquid nicotine from the Poisons List – the list of controlled substances under the Poisons Act.
“I have to be fair to the MOH people – it’s not like the officers are agreeing. They told us, ‘we tried to push back, but we were told you’ve got to get it done because they want to collect tax by 1st April’. But they tried their best.”
The source explained that the Poisons Board rejected the government’s proposal to drop liquid nicotine from the Poisons List because this would mean that nicotine would fall under the Food Act 1983 and that the highly addictive substance could be sold to anyone.
“So it becomes like a food item, like chewing gum.”
“It violates the GEG, where we don’t want tobacco derivatives to be sold to children,” the source added. “Isn’t it counterproductive to the very policy that we all agreed on?”.
The Poisons Board maintained that the Control of Tobacco Product and Smoking Bill 2022 – which seeks to control both tobacco and vape products – must be passed by Parliament first.
“Going ahead with this [exemption] would cause more harm than benefit,” the source told CodeBlue.
“The benefit is the tax the government collects; the harm is the impact to the generation. The fact that nicotine can be sold to anyone of any age – it doesn’t have enforcement or regulations. Even for a short period, evidence has shown that even over two weeks, you can get addicted to nicotine.
“The cost of addiction and the effects of nicotine on your system – it takes a long while to recover. The health care system is going to pay so much in the future.
“So basically, it’s doing more harm than good to people, to citizens, just because the government wants to collect tax.”
‘Russian Roulette’: Declassifying Nicotine While Tobacco Bill Remains Uncertain
Health Minister Dr Zaliha Mustafa reportedly said Wednesday that the tobacco bill would most likely be tabled only in the next Parliament meeting.
“The situation with the tobacco bill is uncertain,” the source said in response. “What happens if there’s another change of government and this bill never gets through, but you have gazetted nicotine to be outside the Poisons Act?”
When asked if excluding liquid nicotine from the Poisons List could increase pressure on the government and MPs to quickly table and pass the tobacco bill in order to regulate vape products, the source replied: “I think that’s playing Russian roulette”.
The source observed the lack of certainty on sentiments from government and Opposition MPs towards the tobacco bill, unlike previous bills like sexual harassment that were widely supported by parliamentarians on both sides of the aisle.
“But from the get-go, the House is already divided,” the source said, referring to the tobacco bill.
The Control of Tobacco Product and Smoking Bill – which would be Malaysia’s first ever Act on tobacco and vape control if passed – is a contentious piece of legislation because of its proposed ban on cigarettes, and tobacco and vape products for anyone born from 2007, dubbed the GEG.
Multiple MPs from the 14th Parliament on both sides of the divide, some of whom remain legislators in the current 15th Parliament, had criticised the GEG.
Health care professionals and advocates previously protested against the government’s proposal to drop liquid nicotine from the list of controlled substances under the Poisons Act, as this will legalise the vape industry in Malaysia – without any existing regulations on vape-free places; sales restrictions; the legal age for consumers; nicotine content; packaging and labelling; or advertising, promotion and sponsorship of e-cigarettes.
Health Minister Must Explain If She Exempts Liquid Nicotine from Poisons List
The source who attended the Poisons Board meeting said board members were “gently” informed by the secretariat that Health Minister Dr Zaliha Mustafa, a medical doctor by training, could still go ahead and drop liquid nicotine from the Poisons List, even though the board recommended against the exemption.
“Because the minister is under the guidance of the board, the minister doesn’t have to follow the board’s recommendations.”
Nicotine is currently classified as a Group C poison under the Poisons Act that can only be dispensed by medical practitioners or pharmacists. There are only two exemptions so far: tobacco (regulated separately under the Control of Tobacco Product Regulations 2004 under the Food Act), and the nicotine patch and gum for smoking cessation.
Section 6 of the Poisons Act empowers the health minister to amend the Poisons List “after consultation” with the Poisons Board.
“If she chooses to ignore what the board said, she needs to explain why. You can decide not to follow someone’s advice, but you need to justify it,” the source said.
“Maybe you feel we’re not expert enough. Maybe collecting tax from the country takes precedence over the risk of nicotine addiction for generations to come. Or maybe you’re going to go ahead and do it because you have a temporary mechanism to enforce. Whatever it is, you owe the public an explanation.
“And you need to be very clear – ‘the board told me not to do it, but I’m going ahead to do it’.”
If Dr Zaliha exercises her unilateral authority – against advice from the Poisons Board – to exempt liquid nicotine from the Poisons List, this would mark a radical shift in Malaysia’s tobacco control landscape by legalising e-cigarettes and vape, but leaving these products completely unregulated.
The health minister issued a statement last January 25 to express her concern about the promotion, advertising, and sale of e-cigarettes and vape products that resembled children’s toys. She had also noted then that the sale of liquid nicotine was controlled under the Poisons Act.
Another source, who attended the Wednesday Poisons Board meeting, confirmed that the board unanimously rejected the government’s proposal to exempt liquid nicotine from control under the Poisons Act.
“We cannot sacrifice public health for money,” the source told CodeBlue on condition of anonymity.
“Liquid nicotine must be controlled. I threw this question to all of them – if your kids are taking vape now, 10 to 20 years later, what will happen?”
