MCTC takes note of the government’s decision to appeal the High Court’s decision of 15 May 2026 concerning the Poisons (Amendment of Poisons List) Order 2023.
At the outset, MCTC wishes to clarify an important point that has often been inaccurately reported in public discourse. The issue before the Court is not that nicotine was “delisted” from the Poisons List under the Poisons Act 1952.
Nicotine remains listed as a poison. The legal challenge concerns the insertion in 2023 of a specific exemption for preparations used for smoking through electronic cigarettes and electronic vaporising devices in liquid or gel form. This exemption effectively removed liquid nicotine used in vape products from the controls that would otherwise apply under the Poisons Act.
Pending the release of the final written judgement and appellate proceedings, MCTC respects the government’s legal right to appeal and recognises that the Court of Appeal will ultimately determine the legal position.
(Editor’s note: The Federal Court is the highest court in the country, not the Court of Appeal).
However, MCTC is concerned by the policy implications of appealing a decision which, at first instance, found that the exemption was irrational and that the process did not involve proper or adequate consultation with the Poisons Board as required under section 6 of the Poisons Act 1952.
The High Court’s broad grounds indicate that the Court viewed the impugned exemption as being driven primarily by fiscal considerations linked to excise taxation, notwithstanding acknowledged public health concerns surrounding nicotine addiction and vape use. The Court also emphasised that consultation under section 6 must be conscious, meaningful, purposeful and effective rather than a mere procedural formality.
With respect to tobacco and vape control, MCTC is concerned that the appeal may create uncertainty regarding the government’s long-term direction on nicotine regulation at a time when stronger, not weaker, measures are needed to prevent youth uptake.
Malaysia has repeatedly acknowledged the growing concern of nicotine dependence among children and adolescents, particularly through electronic nicotine delivery products. Regulatory consistency is therefore essential. Public health policy should prioritise prevention of addiction, protection of children, and reduction of exposure to addictive products before dependence occurs.
The government’s decision to appeal sends a mixed signal when viewed against previous public commitments to strengthen vape control and reduce nicotine addiction. Legal consistency and policy consistency are both important for public confidence.
MCTC maintains that nicotine-containing products should be regulated using a precautionary public health approach that places child protection and health outcomes ahead of commercial and revenue considerations.
At the same time, MCTC emphasises that this case should not be misunderstood as opposition to regulation. On the contrary, MCTC supports a comprehensive and enforceable regulatory framework for smoking and vaping products that closes loopholes, prevents youth access, limits marketing and availability, and aligns with Malaysia’s obligations to protect public health.
MCTC will continue to review the government’s grounds of appeal and the final written judgement once available before commenting further on the legal merits of the appeal.
The Malaysian Council of Tobacco Control (MCTC) is the first applicant in the nicotine case.
- This is the personal opinion of the writer or publication and does not necessarily represent the views of CodeBlue.
