KUALA LUMPUR, Oct 11 – Dr Zaliha Mustafa claims that nicotine vape was already sold widely and illegally, “without any form of control”, before she declassified liquid nicotine as a scheduled poison.
The health minister – in an affidavit for a lawsuit filed against her by the Malaysian Council for Tobacco Control (MCTC), the Malaysian Green Lung Association (MGLA), and Voice of the Children (VoC) – disputed the applicants’ claim that a suspected nicotine poisoning case of a two-year-old child last May 30 was the result of her March 31 exemption order that removed liquid and gel nicotine used in e-cigarettes and vaporisers from the Poisons List.
According to the Ministry of Health’s (MOH) statement last June 5, the two-year-old girl in Bera, Pahang, was suspected to suffer nicotine poisoning from inhaling or swallowing liquid from a disposable vape found near her, leading to seizures and the need for breathing assistance during intensive care at a hospital.
Dr Zaliha denied the link between the toddler’s nicotine poisoning case and her liquid nicotine exemption order.
“Furthermore, I wish to say that electronic cigarettes and vape products containing liquid and gel nicotine had already been in the market illegally and were sold widely without any form of control,” the health minister said in her affidavit filed last Thursday in the High Court here.
“Through this disputed exemption order, [vape] manufacturers are required to register their manufacturing activities with the Royal Malaysian Customs Department; this is a form of control that can be done before more comprehensive controls, pending approval of RUU 2023 (the Control of Smoking Products for Public Health Bill 2023) that has been tabled.”
Contrary to Dr Zaliha’s claim about the lack of “any form of control” prior to the exemption of liquid nicotine from control under the Poisons Act – which contradicts her own description of nicotine vape having been sold “illegally” – the MOH and police had been seizing stocks of nicotine-containing vape liquid for nearly eight years since 2015.
Then-Health Minister Dr S. Subramaniam reportedly said in November 2015 that the MOH was empowered by the Poisons Act 1952 and the Food Act 1983 to seize products containing nicotine.
Prior to Dr Zaliha’s order on March 31 this year that exempted liquid and gel nicotine used in e-cigarettes and vaporisers from the Poisons List, nicotine was classified as a Group C poison under the First Schedule of the Poisons Act that could only be dispensed by doctors and pharmacists for medical treatment.
(Tobacco is regulated separately by tobacco control regulations under the Food Act 1983 that do not cover e-cigarettes or vape).
MOH’s enforcement against the vape industry continued right until at least last year. In fact, Selangor state health director Dr Sha’ari Ngadiman reportedly said in August 2022 that the ministry’s enforcers in the state had seized vape liquids, suspected to contain nicotine, worth RM1.65 million between 2019 and July 2022.
As many as 31 cases related to seizures in the Klang Valley were successfully prosecuted in court, he said, with fines collected amounting to RM108,400.
In August 2019, the MOH seized nearly 67,000 bottles of vape liquid containing nicotine worth RM1.4 million in raids on 78 premises nationwide.
In January this year, under Prime Minister Anwar Ibrahim’s administration, police arrested three individuals and seized more than 53,000 packs of vape liquids and devices worth RM1.55 million in Johor.
The health minister’s reference in her affidavit to the requirement for manufacturers of vape liquids containing nicotine to register their manufacturing activities with the Customs Department also has nothing to do with public health; the requirement merely relates to tax collection, according to a Ministry of Finance (MOF) statement last April 2.
Since last April 1, following the declassification of liquid nicotine as a scheduled poison, the government imposed excise tax at the rate of 40 sen per ml on e-liquids containing nicotine.
In her October 5 affidavit, Dr Zaliha said the MOH has engaged in “continuous monitoring” pending passage of the Control of Smoking Products for Public Health Bill in Parliament – despite asserting, at the same time, the lack of “any form of control” even while e-liquids containing nicotine were illegal, prior to the declassification of liquid nicotine.
The health minister cited a 2022 circular by the Health director-general on the mandatory notification of e-cigarette or vaping product use-associated lung injury (Evali) cases.
“The MOH also conducts advocacy activities, such as health talks, health exhibitions, and health education through the media and infographics, and also prevention to ensure that society is more aware about the effects of the use of electronic cigarettes or vape,” Dr Zaliha said.
“The MOH has also implemented plenty of initiatives to raise awareness for children and teenagers about the use of electronic cigarettes or vape.”
A June 30 supporting affidavit by MCTC, MGLA, and VoC pointed out that the health minister’s exemption order legally permits any level of nicotine content in e-cigarettes or vape.
Citing a CodeBlue report, the anti-tobacco and child rights groups said vapes with nicotine strengths of between 3 per cent and 5 per cent are currently available in the Malaysian market, but cannot be found in countries that regulate vape such as the United Kingdom, Australia, Indonesia, the United States, and New Zealand that cap nicotine strength in e-cigarettes to 2 per cent to 3 per cent.
MCTC, MGLA, and VoC also said nicotine is toxic at 60 mg per ml (6 per cent) concentration. The United States’ Centers for Disease Control and Prevention (CDC) states that 50 to 60 mg of nicotine is a deadly dose for an adult weighing 150 pounds (approximately 70 kg), and the lethal dose for children is around 6mg.
In response, Dr Zaliha described the data cited by the applicants as “unofficial” data.
The High Court is set to hear the judicial review on December 6, after giving the three civil society groups leave to pursue their suit to nullify the exemption of liquid nicotine from control under the Poisons Act.