It’s not every day that court decisions come with a literal price tag, but in the case of Malaysian Council for Tobacco Control & 2 Others v Malaysia Health Minister & Another, a momentous victory by anti-tobacco groups will cost the government more than RM200 million.
Far from being an “academic” issue, the High Court ruling last Friday by Justice Aliza Sulaiman – who struck down the declassification of liquid and gel nicotine used for e-cigarettes and vape as a controlled substance – has an immediate devastating impact on not just the vape industry, but also tax revenue.
The three applicants in their successful judicial review, including Malaysian Green Lung Association and Voice of the Children, achieved more than their wildest dreams: a total and instantaneous de facto ban on nicotine vape.
E-liquids with nicotine remain in the Poisons List under the Poisons Act 1952 because these were never (lawfully) removed in the first place, as deemed by the High Court.
Hence there’s nothing to “reinstate” into the Poisons List. Rather, the government (specifically, the health minister) has to decide whether to try to remove liquid nicotine from the list of scheduled poisons again.
The sale of nicotine vape and, consequently, collection of excise duties on the product, became illegal the minute the High Court delivered its verdict, or rather, had always been and still is illegal.
In other words, it’s like Justice Aliza went back in time and erased the March 31, 2023 order by then-Health Minister Dr Zaliha Mustafa to legalise nicotine vape, just like how the Avengers used time travel to retrieve Infinity Stones from the past in Avengers: Endgame to reverse Thanos’ actions and save the universe. So we’re now in a new timeline in which nicotine vape has always been a prohibited substance.
Nicotine vape is effectively banned for retail sale because liquid nicotine is once again a scheduled poison that can only be dispensed by a licensed pharmacist or a registered medical practitioner.
The government cannot operationalise the Control of Smoking Products for Public Health Act 2024 (Act 852) – at least in the context of nicotine vape – because that law was enacted and passed by Parliament on the basis that nicotine vape was a legal product for retail sale outside of a pharmacy or medical setting.
But because the High Court ruling turned back time, regulations like a 2 per cent nicotine cap for vapes can’t be operationalised because all nicotine vapes are now illegal and can’t be sold to begin with.
Similarly, the under-18 prohibition under Act 852 can only be operationalised for non-nicotine vapes and other smoking products because, as a result of the High Court verdict, the sale of nicotine vape is now prohibited to everyone in Malaysia, not just minors (i.e. a total ban beyond age or generational restrictions).
Act 852 can probably stay on the books; it just can’t be fully operationalised as long as liquid nicotine remains in the Poisons List.
As for excise duties on nicotine e-liquids, the government cannot tax an illegal product.
Not only is the Ministry of Finance (MOF) now prohibited from collecting tax revenue on vape liquids with nicotine, it’s obligated to refund the over RM209.5 million in excise duties collected on nicotine e-liquids from May 2023 to August 2025.
Vape companies cannot be prosecuted for selling nicotine vapes in the past three years on good faith that they were conducting legal business, but they’re entitled to receive refunds of illegal taxes.
There is legal precedence in both Malaysia and the United States for refunds of unlawful taxation.
Last Friday, The New York Times reported that the US government has started to refund some of the US$160 billion collected from tariffs that the Supreme Court deemed illegal, plus interest, to businesses.
An appeals court ruled in 2007 that Tennessee’s tax on illegal drugs was unconstitutional because it derived revenue from illegal activities.
Malaysian law isn’t just enacted in Parliament; case law from court decisions carries equal weight.
Vape businesses and MOF must uphold the law and immediately stop selling nicotine vapes and collecting tax respectively, similar to how major US airlines stopped requiring passengers and crew members to wear face masks on the same day that a district court in America struck down a federal mask mandate in 2022.
The police and health inspectors in the Ministry of Health (MOH) would be well within their rights to raid vape businesses and seize nicotine vapes.
Whether the government appeals the ruling is irrelevant; the illegality of nicotine vapes will persist until and unless the Court of Appeal overturns the lower court’s decision. This could take years, since the High Court took three years to decide on the judicial review application filed in 2023.
So what will the Madani government, especially Health Minister Dzulkefly Ahmad, do now?
Dzulkefly told reporters last December that banning vape wasn’t a question of if but when, adding that the MOH was targeting mid-2026 or by the end of the year to implement the prohibition, subject to the completion of regulatory and legislative processes.
“What we are doing now is moving towards a decisive end point,” he said.
The High Court has now taken it of the government’s hands and given Dzulkefly that “decisive end point” ahead of time, with an instant ban on nicotine vapes.
If the health minister meant what he said, then he must instruct vape businesses to immediately stop selling nicotine vapes, without any grace period of enforcement, while MOF must announce the immediate cessation of taxation on e-liquids with nicotine (besides issuing tax refunds).
Nicotine-free vapes, heat-not-burn tobacco products, and conventional cigarettes can continue to be sold legally and regulated under Act 852.
But if the government prioritises money over public health, then Dzulkefly has to go back to the Poisons Board and properly “consult” it in another attempt to exempt liquid nicotine from the Poisons List — i.e. back to square one, where his predecessor was.
Even though the Poisons Board’s composition has changed, it’s not likely to depart from its unanimous 2023 position on keeping liquid nicotine in the Poisons List. Malaysia has seen an increase in drug-laced vapes like fentanyl over the past few years. So the current situation is even more dangerous than 2023.
Taking the Poisons Board route will be a lot faster than waiting for a Court of Appeal decision, although Dzulkefly will probably have to spend perhaps six months of “conscious, meaningful, purposeful, and effective” consultation with the Board.
During Dr Zaliha’s tenure, the Poisons Board was given 24 hours’ notice to hold a meeting; the health minister gazetted the nicotine delisting order two days after the meeting.
In any case, nicotine vape will remain illegal during this period of consultation with the Poisons Board, however long it takes to prove that the health minister sought genuine consultation.
Optics-wise, Dzulkefly would look just as bad as Dr Zaliha – if not worse – for seeking to legalise nicotine vapes when he has frequently expressed his intention to ban vape.
In her broad grounds of decision, Justice Aliza wrote that Dr Zaliha breached “the duty to protect public health”.
That duty, it seems, rests solely with the health minister – separate from the rest of the Cabinet – even if the executive makes a policy decision to legalise nicotine vapes for taxation purposes.
Dr Zaliha took it upon herself to speak on behalf of the health minister (who is the first respondent in the case) when she claimed last Saturday that the MOH would appeal the ruling, as she sought to defend her actions when she was in office.
However, the MOH simply said in a statement yesterday that it would hold discussions with the Attorney-General’s Chambers in the nearest time to look at the next legal steps and follow-up action.
A doctor wrote recently that he has been vindicated by the High Court, after he was hauled up for a disciplinary investigation and instructed to delete his Facebook post that criticised Dr Zaliha’s decision to remove liquid nicotine from the Poisons List then.
Members of the Poisons Board who attended the crucial March 29, 2023 meeting also deserve praise for their courage in standing up to the health minister.
Dzulkefly often says that his second term in office is his second bite of the cherry. In this new alternate timeline with a de facto ban on nicotine vapes, the health minister has the chance to do the right thing.
