KUALA LUMPUR, August 24 — The Malaysian Council for Tobacco Control (MCTC) has backed Perak’s decision to defend its ban on vape sales in court, while urging Putrajaya to establish a clear national policy on vaping amid unresolved questions over how federal and state regulations should operate together.
MCTC president Prof Dr Murallitharan Munisamy said Perak’s decision to defend its policy was an important exercise of government responsibility to protect public health, particularly children and young people from nicotine addiction.
Perak has stopped issuing and renewing licences for premises selling vape products, using local authorities’ licensing powers under the Local Government Act 1976. Existing operators have been given until October to cease sales.
The New Straits Times reported that the policy is being challenged in the Ipoh High Court by the president of the Malaysia E-Vaporizers and Tobacco Alternative Association (MEVTA) and vape company SS City Electronics Enterprise, who filed a judicial review on March 18 questioning whether the Perak government had acted beyond its legal powers.
MCTC said the court should determine whether Perak’s particular legal mechanism is lawful.
“However, the challenge must not be misrepresented as establishing that the state government has no legitimate role in protecting its population from the harms of vaping,” Dr Murallitharan said in a statement today.
The state-level ban comes as the federal government has itself yet to clarify the future of nicotine vape after withdrawing its appeal against a High Court ruling that nullified the 2023 exemption of liquid and gel nicotine used in vape products from the Poisons List.
The withdrawal means the High Court ruling stands, but leaves an unresolved question over how the Control of Smoking Products for Public Health Act 2024 (Act 852) is supposed to operate alongside the Poisons Act 1952.
Act 852, which came into force on October 1, 2024, regulates smoking products including vaping products and prohibits their sale to people below 18. This means nicotine vape remains regulated as a legal smoking product for adults under the federal law.
However, the High Court found that the 2023 decision to remove liquid and gel nicotine from the Poisons List was irrational and unlawful, and that the exemption was made without proper and effective consultation with the Poisons Board.
Before the exemption, liquid nicotine was classified as a Group C poison under the Poisons Act, restricting its dispensing to licensed pharmacists or registered medical practitioners.
Health Minister Dzulkefly Ahmad and the Ministry of Health (MOH) have yet to issue a statement explaining the government’s withdrawal of the appeal or clarifying the legal and regulatory status of liquid nicotine following the High Court ruling.
MCTC said the High Court judgement provided important guidance for the current national debate on vaping, particularly because the court found that government policy decisions affecting public health are not automatically immune from judicial review.
The court also found that Malaysia’s commitments under the World Health Organization Framework Convention on Tobacco Control and Convention on the Rights of the Child were relevant considerations in government decision-making.
“The lesson for policymakers is clear: public health regulation should not be reduced to taxation and revenue collection,” Dr Murallitharan said.
He said taxation could be one instrument of tobacco control, but could not substitute for measures to reduce the availability, accessibility and attractiveness of addictive nicotine products, particularly to young people.
MCTC Wants Putrajaya To Set National Vape Policy
MCTC said the differing approaches taken by federal and state authorities underscored the need for Putrajaya to determine a coherent national policy on vaping.
While Act 852 provides a federal regulatory framework for vaping products, Perak has taken a more restrictive approach by using local authority licensing powers to progressively remove vape sales from the state.
Dr Murallitharan said the two approaches were not necessarily contradictory. “Regulation of a harmful and addictive product and progressively eliminating its availability are not necessarily contradictory objectives,” he said.
“Where evidence demonstrates that existing controls are inadequate, governments should be able to adopt stronger measures within their lawful powers.”
MCTC urged the federal government to support states and local authorities that adopt stronger lawful measures to reduce vape availability.
More importantly, it called on Putrajaya to “clarify urgently the legal relationship between Act 852 and the Poisons Act 1952, particularly following the High Court judgement and the government’s withdrawal of its appeal”.
The group said Putrajaya should also close remaining regulatory gaps concerning nicotine-containing products, including product composition, nicotine concentration, flavours, devices and sales.
It urged stronger enforcement against illegal and unregistered products, including products supplied to children and adolescents, and called for a clear national pathway towards a smoke-free nation by 2040 centred on preventing nicotine addiction among children and helping existing users quit.
Dr Murallitharan said the rule of law and public health protection should not be treated as competing principles.
“They are complementary,” he said. “The ultimate test of tobacco and nicotine policy must not be how much revenue a product can generate, but how effectively the government protects its people – especially children – from addiction and preventable disease.”
