KUALA LUMPUR, April 4 — Khairy Jamaluddin has revealed how he withstood pressure from the Finance Ministry – when he was health minister – to declassify liquid nicotine as a scheduled poison.
In the last administration headed by Prime Minister Ismail Sabri Yaakob, then-Finance Minister Tengku Zafrul Aziz, when tabling Budget 2022 in 2021, announced excise duty of RM1.20 per ml on liquid or gel nicotine used for electronic cigarettes and vape.
“But I resisted; I disagreed,” Khairy said in yesterday’s episode of his podcast with Shahril Hamdan, Keluar Sekejap.
“Even though the Finance Ministry had said – Zafrul had announced as Finance Minister – ‘now, you must exempt it [liquid nicotine] from the Poisons List under the Poisons Act’, I refused to sign [the order].
“I said, ‘As long as I don’t have a new Act to avoid a gap in the current legislation, lacuna in the current legislation, I will not sign off on the exemption’.
“Because in terms of governance, the sequence of events must be that the new Act must be passed first before the exemption is done. If the exemption is made without a new Act, there will be no regulation of the sale of liquid nicotine or vape liquids containing nicotine. That is among what is currently happening right now – what’s happening now is a free for all”.
Khairy’s successor, Health Minister Dr Zaliha Mustafa, exercised her ministerial powers last Friday to exempt liquid or gel nicotine as a Class C poison from the list of scheduled poisons under the Poisons Act 1952 to enable taxation on e-liquids with nicotine – overruling the Poisons Board’s unanimous objection to the government proposal.
Finance and Prime Minister Anwar Ibrahim put into effect an excise duty of 40 sen per ml on e-liquids with nicotine from last April 1. The Ministry of Finance (MOF) has told vape industry players, particularly local manufacturers of e-liquids containing nicotine, to register their manufacturing activity with the Customs Department by April 30.
Khairy pointed out that there are currently no regulations whatsoever on e-cigarettes or vape products with nicotine, as the Control of Tobacco Products Regulations 2004 under the Food Act 1983 only covers conventional cigarettes and other tobacco products.
“The restriction for [sale to] those aged 18 and above is only for smoking products, tobacco products. So now, there are no regulations whatsoever in terms of sale, marketing, and so on for vape.”
Dr Zaliha said last Saturday that the government aimed to table a tobacco and vape control bill – which she described as a “new” bill – in the next parliamentary meeting in May. The next Dewan Rakyat meeting is only 11 days long from May 22 to June 15.
“Alhamdulillah, okay, there’s a plan,” Khairy said in response.
“But the problem here is the fear of the risk of the bill not passing. Yes, if the bill does not pass, this lacuna will continue — unless it [liquid nicotine] is put back under the Poisons Act. But then it will look like a U-turn.”
The former health minister, who is also an ex-Umno member, urged the government to bring the tobacco bill to Parliament this month to close the gap in legislation, while local manufacturers of e-cigarettes and vape with nicotine register with the Customs Department.
Last year, Khairy faced considerable difficulty trying to get the tobacco control bill through the Dewan Rakyat, forcing what would be Malaysia’s first-ever Tobacco Control Act to be stalled before the 14th Parliament was dissolved for the 15th general election.
This was mainly due to the highly controversial generational end game (GEG) provision – which sought to ban all tobacco and vape products for those born from 2007 onwards – that was opposed by MPs then on both sides of the divide.
Khairy said the medical fraternity and health non-governmental organisations (NGOs) remain opposed to the legalisation of vape when liquid nicotine is removed from the Poisons List for taxation purposes.
“Now, it is legal.”
He recalled when he was health minister, health and anti-tobacco advocates had told him: “‘If you do this, we will object, and the health minister who does this is a minister who does not care at all about public health’.”
Khairy said he had succeeded in negotiating with health and anti-tobacco advocates to accept the legalisation of vape in exchange for the GEG.
“I said, ‘The train has left the station on vape’,” said the former health minister, noting that some people had already begun touting vape as tobacco harm reduction – which he did not believe in – while others argued that the vape industry had already grown “too big”, which made keeping vape illegal impossible.
“We have to legalise it, and we have to keep it under strict control. So I told them, ‘Meet me halfway. Meet me halfway. We agree to strictly regulate the vape industry because we cannot completely shut down the vape industry as it’s too late, but at the same time, I will give you something’. That something is the GEG”.
Khairy said the vape industry has flourished for years in Malaysia – despite the classification of liquid nicotine as a poison – because of complications in enforcement.
“Before this, enforcement was possible against vape sellers. That’s why we saw in the news about raids on premises selling vape liquids or the seizure of 150,000 bottles of vape liquid in houses. It did happen. But the problem is now, there are far too many vape stores,” he said.
Khairy explained that enforcers cannot immediately take action when they raid a vape store, as they do not know immediately if the e-liquids contain nicotine. So enforcers make the seizure first and send the product to the lab to check for the presence of nicotine before action can be taken, a “complicated” process.
“We must remember there have been hundreds of vape stores since 2013,” he said.
“For whatever reason, maybe because of political pressure, we have long allowed these stores to operate without strict control.”
He said when he was Youth and Sports Minister in 2015 – when Dr S. Subramaniam was then the health minister – the government had formed a committee to come up with regulations and legislations to regularise and legalise vape.
But since then, there has been no new law to regulate vape aside from the Poisons Act, Khairy noted, until the government dropped liquid nicotine from the Poisons List last March 31.
Former Health deputy director-general (public health) Prof Dr Lokman Hakim Sulaiman has slammed the declassification of liquid nicotine, describing it as the “most ridiculous public health policy decision I have ever seen”, “almost nearing stupidity in policymaking”.
