Reinstate Liquid Nicotine As Poison, Don’t Fight Us In Court, MCTC Tells Health Minister

The Malaysian Council for Tobacco Control wants Health Minister Dr Zaliha Mustafa to reinstate liquid nicotine into the Poisons List before the July 26 hearing of their judicial review application against the delisting, instead of fighting them in court.

KUALA LUMPUR, July 4 – Anti-tobacco groups today urged Health Minister Dr Zaliha Mustafa to reinstate liquid nicotine back under the Poisons Act 1952 instead of opposing their legal challenge against the declassification of the addictive substance.

The Malaysian Council for Tobacco Control (MCTC), the Malaysian Green Lung Association (MGLA), and Voice of the Children (VoC) maintained that their lawsuit against the health minister and the government was not filed out of spite, but was simply aimed at encouraging the restoration of liquid and gel nicotine into the Poisons List.

The reinstatement, said the anti-tobacco and child rights groups, should be done before the court hearing of their judicial review application in three weeks’ time on July 26.

“If the minister decides to put it [liquid nicotine] back, the judicial review becomes an academic exercise,” MCTC chairman Dr M. Murallitharan told a news conference at the Royal Lake Club here today.

“The MOH (Ministry of Health), by its own voluntary decision, can act. Behind the landscape we don’t know what is going on; maybe they are really curtailed. They may be in a deadlock, so if they are in a deadlock, look here is an external arbitrary party who can look at it – the judiciary.

“So in case you are in a deadlock, here is an alternative. That is what we are saying as well,”

MCTC has over 40 member organisations, including doctors’, pharmacists’ and cancer groups, such as the Malaysian Medical Association (MMA), the Malaysian Pharmacists Society (MPS), the National Cancer Society Malaysia (NCSM), and Lung Cancer Network Malaysia (LCNM).

Dr Murallitharan pointed out that members of the MCTC have been consistent in promoting tobacco control for public health and public safety over the past few decades.

“There is no political motive [behind the lawsuit]. We health advocacy members are very neutral. Whatever is good for the people, we really support and we move together,” he said.

“So this does not have any political grievance, and also there is no timing around it. It is not aimed at any individual.”

The judicial review application by MCTC, MGLA, and VoC seeks a court order to quash the order gazetted by Dr Zaliha last March 31 that exempted liquid and gel nicotine used in e-cigarettes and vape devices from the list of scheduled poisons under the Poisons Act.

The non-governmental organisations (NGOs) also urged the government not to contest should the High Court grant leave for judicial review. 

“If you ask me, we appeal to the Ministry of Health and the AGC (Attorney-General’s Chambers) to not contest the leave,” said Dr Murallitharan on behalf of the three applicants.

“If the government is really concerned [about public health], as I said, we are not wronging any one individual, this is the decision that has been made. We want to ask [the ministry] to reverse their decision for the people. 

“This is an issue involving our children and our youth. That is our interest. So, if the government can actually show its willingness and understanding, we call upon the government, don’t contest the leave. Let the issue go to the courts and let them look at it from a legal perspective.”

Civil Society Exhausted Executive and Legislature Before Decision to Sue

A press conference by the Malaysian Council for Tobacco Control (MCTC) and Voice of the Children (VoC) at the Royal Lake Club in Kuala Lumpur on July 4, 2023. From left: MCTC chairman Dr Murallitharan Munisamy; MCTC secretary-general Muhammad Sha’ani Abdullah; VoC chairwoman Sharmila Sekaran; and MCTC deputy chairwoman Roslizawati Md. Ali. Photo by Sharayu Pillai.

Dr Murallitharan said that the decision to file for judicial review was merely a part of the democratic process, pointing out that civil society groups had exhausted the country’s executive and legislative branches before deciding to challenge the delisting of liquid nicotine in court.

After the shocking March 31 declassification, health and medical NGOs approached the MOH and expressed concerns about the lacuna in the law legalising the sale of vape and e-cigarettes with nicotine to anyone, including minors aged under 18, as the government had yet to table or pass the Control of Smoking Products for Public Health Bill 2023. 

“Our input was received, but it was not taken into consideration,” Dr Murallitharan said.

With their concerns falling through, Dr Murallitharan said the NGOs then turned to the Control of Smoking Products for Public Health Bill and threw the weight of their support behind the proposed legislation that regulates tobacco and vape products. 

While Dr Zaliha did table the bill in the Dewan Rakyat last June 12 for first reading, the bill was immediately referred to the Health parliamentary special select committee (PSSC) without giving MPs the opportunity to debate the bill. 

“Coincidentally, when nicotine was freed for public use, we can see the consequences,” Dr Murallitharan said.

He cited the June 5 death of a 16-year-old girl that was linked to probable e-cigarette or vaping use-associated lung injury (EVALI). In a separate nicotine poisoning case reported by the MOH, a two-year-old toddler was left with neurological problems after ingesting liquid nicotine from a vape device.

Despite those cases, the government, which has nearly two-thirds majority in Parliament, failed to secure passage of the tobacco bill in the last Dewan Rakyat meeting.

“We don’t have Parliament till October, and we truthfully don’t know in October [whether the bill] will be passed or not,” Dr Murallitharan said. 

“Nicotine in the span of 72 hours can become addictive. I wait 160, 170 days, while waiting for Parliament to sit, I might have five to 10 thousand new children that will become nicotine addicts. So, that is something that we cannot live with. 

“So, that is what caused us to go to the next branch of government – that is the judiciary,” said Dr Murallitharan. 

The MCTC chairman said the applicants had been advised by their lawyers to wait until Parliament failed to pass the Control of Smoking Products for Public Health Bill before filing suit. Dr Murallitharan also said they had wanted to exhaust all options before going to court.

He added that the judicial review application was a signal of public support – via the health and child rights NGOs – for MPs to support the tobacco bill.

“We have no affiliation, our only affiliation is to the public and we represent the public, so it is also to share with the parliamentarians to give them the courage and the strength that they have the public support.” 

Dr Zaliha did not respond to media requests to her office or the MOH for comment on whether she would accede to MCTC’s request to reinstate liquid nicotine before July 26 or if she would see them in court.

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