The Tobacco Bill Is Now Schrödinger’s Cat

A source says the Control of Smoking Products for Public Health Bill won’t be tabled for second reading tomorrow. A media briefing and MPs’ briefing on the tobacco bill scheduled by MOH in Parliament this afternoon have both been postponed indefinitely.

KUALA LUMPUR, Oct 9 – In quantum physics, the Schrödinger’s Cat thought experiment demonstrates how a hypothetical cat sealed in a box with a vial of poison – which will be automatically smashed if a radioactive particle decays – is simultaneously dead and alive, as you won’t know for sure until you open the box and observe the cat.

Likewise, the Control of Smoking Products for Public Health Bill 2023 is currently in an unknowable state.

Health Minister Dr Zaliha Mustafa announced in a press statement last Thursday that the tobacco and vape control bill would be tabled in the Dewan Rakyat for second reading tomorrow, following a Cabinet decision last Wednesday.

She told reporters at the sidelines of an event earlier that she had submitted a “note” to Cabinet to accept a motion that will be brought by the Health parliamentary special select committee (PSSC) on its proposed amendments to the bill.

According to the Dewan Rakyat’s order paper for today’s sitting, the Control of Smoking Products for Public Health Bill is listed for second reading, together with a report by the Health PSSC chaired by Kuala Selangor MP Dzulkefly Ahmad. The bill had been referred to the PSSC immediately after first reading last June.

However, a source told CodeBlue yesterday that the tobacco bill will not be tabled for second reading in Parliament tomorrow. “Sad to say, Tuesday won’t happen.”

Yesterday, the Ministry of Health (MOH) informed the press that a media briefing scheduled this afternoon on the bill in Parliament has been postponed indefinitely. The MOH did not explain why; Dr Zaliha also did not respond to CodeBlue’s requests to confirm if the bill will indeed be tabled tomorrow.

A separate briefing by Dr Zaliha for both government and Opposition MPs on the Control of Smoking Products for Public Health Bill that had been scheduled for 5pm in Parliament today was similarly called off by the health minister earlier this morning.

CodeBlue understands that Prime Minister Anwar Ibrahim held a briefing for MPs yesterday morning on the tobacco bill.

Dr Zaliha’s invite for the MPs’ briefing and the MOH’s invite for the media briefing were sent last Thursday and Friday respectively.

It’s uncertain what transpired over the last few days that could cause the government to not proceed with tabling the Control of Smoking Products for Public Health Bill tomorrow for second reading for a debate and vote, especially since the health minister had announced the planned tabling subsequent to Cabinet’s decision last Wednesday.

Malaysia’s first proposed standalone tobacco control Act that envisions a smoke-free generation – with two versions, 2022 and 2023 – has now gone through three PSSCs across two Parliaments, two health ministers, and two governments.

A source told CodeBlue recently that revisions to the Control of Smoking Products for Public Health Bill – following the Health PSSC’s work on the bill – included increased fines for suppliers under the generational end game (GEG) ban on tobacco and vape; lower fines to below RM500 for buyers, or smokers or vapers in the GEG group; and a two-year “educational enforcement” period after the Act takes effect.

Yet, the main sticking point with MPs across party lines appears to be the GEG policy itself – regardless of the nitty-gritty details with fine quantum or enforcement powers – that seeks to ban both conventional and electronic cigarettes for everyone born from 2007 throughout their lifetime.

Several Opposition MPs told CodeBlue yesterday that they recently received “spam” messages on WhatsApp from the vape industry that urged them to oppose the Control of Smoking Products for Public Health Bill.

An anonymous policy brief sent to multiple lawmakers from Perikatan Nasional (PN), as sighted by CodeBlue, called for the GEG to be decoupled from the bill, claiming that the generational tobacco and vape prohibition would affect Bumiputera businesses and Malay workers in the vape industry, as well as coffee shops that supposedly make 30 per cent of their revenue from cigarette sales.

Only a handful of MPs on both sides of the divide have publicly stated their stance on the tobacco bill. Proponents include Dr Kelvin Yii (PH-Bandar Kuching) and Dr Ahmad Yunus Hairi (PN-Kuala Langat), while opponents include R. Ramanan (PH-Sungai Buloh), Bung Moktar Radin (BN-Kinabatangan), and Wan Saiful Wan Jan (PN-Tasek Gelugor).

“I believe we have a responsibility to ensure the health of our future generations. It is irresponsible if we introduce a law that will result in the government being unable to control the ingredients of cigarettes and vape because they have all become illegal and are only sold in the black market,” Wan Saiful, a former founding CEO of libertarian think tank IDEAS, told CodeBlue yesterday.

“GEG means that eventually 100 per cent of whatever cigarettes and vape that exist in the country are illicit. We cannot control the ingredients of illicit items. How is that responsible? We will make the health risks worse.

“And if we are worried about health care costs, is PH (Pakatan Harapan) going to introduce laws to ban sugar or force physical exercise in order to reduce the costs of treating cardiovascular diseases and diabetes?”

Wan Ahmad Fayhsal Wan Ahmad Kamal (PN-Machang) told CodeBlue yesterday that he personally supports the GEG. Dr Zulkafperi Hanapi (PN-Tanjung Karang) — who received a memorandum last Friday from a non-governmental organisation called Gagasan Belia that called for more stakeholder engagement, especially on the enforcement of the GEG — told CodeBlue that he was “in the middle”.

When contacted, a few PH lawmakers said they didn’t receive “spam” messages from the vape industry, but Syahredzan Johan (PH-Bangi) told CodeBlue that he received “spam” comments on his Facebook page, “probably troll farms”, that urged his support for the Control of Smoking Products for Public Health Bill.

“I need to see the bill first,” said Syahredzan, a lawyer, when asked if he supported the tobacco bill. The Health PSSC’s proposed amendments to the bill have not yet been made public, prior to the tabling of the select committee’s report in the House.

Isnaraissah Munirah Majilis (Warisan-Kota Belud) previously told a dialogue at a Parliament’s Open Day event last May that her constituents do not support the tobacco bill, as she questioned whether the government would ban sugar next.

Although most government MPs have not publicly expressed their stance on the tobacco bill, failure to table the bill for second reading tomorrow would indicate scarce backing from government backbenchers. Even if Cabinet supports the Control of Smoking Products for Public Health Bill, objections from parliamentarians to their respective party leaderships (behind closed doors) would dissuade the government from taking the bill to a debate and potentially losing a bloc vote, if one is called.

Only a simple majority is needed to pass the Control of Smoking Products for Public Health Bill; Anwar’s government holds nearly two-thirds majority in Parliament.

Ironically, regardless of which party is in government or who is elected to Parliament, the tobacco bill has become the best illustration of parliamentary democracy in Malaysia – similar to what routinely happens in the United Kingdom Parliament or the United States Congress – where proponents of a bill have to negotiate, make concessions, and count support from parliamentarians or congressmen to get legislation through.

Over the past few days, tobacco and vape industries have gone on overdrive in lobbying against the Control of Smoking Products for Public Health Bill, issuing multiple press statements and analyses that criticised the GEG. Last August, a tobacco lobby group organised a panel discussion with politicians on both sides of the divide on the tobacco bill, including Wan Saiful and former deputy minister Sivarasa Rasiah from PKR.

Anti-tobacco activists, on the other hand, do not seem to have personally met with MPs to lobby for the bill, preferring to rely instead on the MOH’s social media messaging, public events, and opinion polls among the general public, even though the millions of Malaysian citizens do not have the power held solely by 222 MPs to vote on the bill in Parliament.

The current Dewan Rakyat meeting is scheduled until November 30. Technically, even if second reading doesn’t occur tomorrow, there is still time for the government to (yet again) revise the tobacco bill, including possibly decoupling the GEG from the legislation altogether to get parliamentarians’ support.

A policy change as significant as dropping the GEG would likely force the government to go back to the drawing board with a fresh bill, although the entire process, including taking it through a vote and passage, might be able to be completed in the current Parliament meeting, since the proposed generational tobacco ban is only part of the bill.

Even without the GEG, a standalone tobacco and vape control Act is crucial to regulate tobacco and vape products, especially after the Anwar administration exempted liquid nicotine from control under the Poisons Act 1952 last March 31 to tax e-liquids with nicotine. This effectively legalised the sale of e-cigarettes and nicotine vape to everyone, including minors aged under 18.

But with so many false starts — and with Budget 2024 scheduled in the current Dewan Rakyat meeting that would consume parliamentarians’ time and attention — the Control of Smoking Products for Public Health Bill could very well remain like Schrödinger’s Cat, simultaneously dead and alive in Parliament order papers throughout the entire term.

Editor’s note at 9.42am: This story was updated in paragraph 8 to reflect the cancellation of the MPs’ briefing scheduled at 5pm in Parliament today on the tobacco bill.

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