Health NGOs’ Lawsuit Over Liquid Nicotine Delisting Was ‘Last Resort’: Galen Centre

The Galen Centre describes the lawsuit filed by health NGOs to challenge the declassification of liquid nicotine as “an act of last resort”. Maintaining the current status, it says, could place the government in an impossible situation of defending vape.

KUALA LUMPUR, July 3 – Civil society’s legal challenge against the declassification of liquid nicotine is a “wake-up call” to the government to review its tobacco control priorities, the Galen Centre for Health and Social Policy said today.

Galen Centre chief executive Azrul Mohd Khalib said the judicial review application by anti-tobacco groups – the Malaysian Council for Tobacco Control (MCTC) and the Malaysian Green Lung Association (MGLA), as well as child rights group Voice of the Children (VoC) – was intended to prevent and reduce harm that resulted from the exemption of liquid and gel nicotine from control under the Poisons Act 1952.

The exemption order – gazetted by Health Minister Dr Zaliha Mustafa last March 31 in a veto of the Poisons Board’s unanimous objection – effectively legalised the sale of e-cigarettes and vape with nicotine to anyone, including minors aged below 18, due to the complete absence of regulations for these products.

“The decision by the plaintiffs to file this lawsuit against the Health Minister and the Government of Malaysia was clearly not taken lightly,” Azrul said in a statement today.

“This case comes as a shock, but not a surprise. It comes after numerous appeals, attempts at engagement and consultation, and frustration of public health experts and child advocates, at the seeming lack of concern and progress in addressing the unregulated and uncontrolled state of vape and e-cigarettes containing nicotine. 

“An act of last resort to get the government to take immediate measures to prevent harm, especially with increasing reports of high nicotine and marijuana-laced vape use among young people, and even children. It is also a demand for accountability.”

The unprecedented lawsuit by health advocates against the Health Minister and the federal government – for allegedly harming public health by declassifying liquid nicotine – was filed after the government referred the Control of Smoking Products for Public Health Bill 2023 to a parliamentary special select committee (PSSC) immediately after first reading in the Dewan Rakyat last June 12.

Never before have health advocates sued a health minister. The judicial review application by MCTC, MGLA, and VoC – which was filed in the High Court in Kuala Lumpur last Friday – sought a court order to quash the exemption of liquid and gel nicotine from the Poisons List. 

“This judicial review places the government both at a crossroads, and an opportunity. Should the government defend its decision to exempt this type of nicotine from the scheduled list, or reverse the Order pending passage of the Control of Smoking Products for Public Health Bill 2023 in Parliament?” Azrul said. 

“Maintaining the current status could place the government in an impossible position: defending nicotine vape and e-cigarettes despite the Ministry of Health’s own warning that these products constitute a ‘public health threat’.”

Azrul drew attention to the infamous 1994 United States’ congressional hearing held by Henry Waxman, the former Democratic representative of California, in which the presidents and CEOs of the seven largest American tobacco companies were asked by Senator Ron Wyden of Oregon if they believed nicotine was not addictive. 

All seven claimed to the House Energy and Commerce Subcommittee on Health and the Environment that they believed cigarettes and nicotine were not addictive.

“If the government is not clear or decisive in this lawsuit regarding nicotine vape, Malaysia could find itself on the wrong side of history and have a similar infamous moment,” Azrul said.

“This public interest case also presents an opportunity to consider debating and passing the Control of Smoking Product for Public Health Bill 2023 in the immediate future.

“Unfortunately, many stakeholders perceive that the government may not actually be interested in passing this piece of health legislation.

“Its decision in the last Dewan Rakyat sitting to unilaterally refer the Control of Smoking Products for Public Health Bill 2023 to the Parliamentary Special Select Committee on Health came as a shock for many, including Members of Parliament, who expected at least a debate on the Bill.”

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