KUALA LUMPUR, Sept 1 — A High Court ruling that struck down the exemption of liquid and gel nicotine from the Poisons List was Malaysia’s most significant tobacco control advancement in recent history.
The Madani administration’s recent decision to withdraw its appeal against that verdict means that the government agrees with the High Court that it had acted unlawfully in removing liquid and gel nicotine used in e-cigarettes and vape from the list of scheduled poisons under the Poisons Act 1952 (Act 366).
If the Madani administration believed that it had properly exempted liquid nicotine from the Poisons List in 2023, the government would have proceeded with its challenge of the High Court decision.
In other words, the government’s current legal position — even if Putrajaya refuses to publicly admit it — is that liquid and gel nicotine are now and have always been on the Poisons List.
Hence, both anti-tobacco and vape groups alike are asking how Act 366 (which limits dispensation of liquid nicotine as a Group C poison to pharmacists and doctors) interacts with the Control of Smoking Products for Public Health Act 2024 (Act 852) that permits the retail sale of nicotine vape, among other smoking products, to adults aged 18 years and above.
The answer to this question can be found in how tobacco is regulated. Tobacco has been exempted from the Poisons List ever since it was regulated under the Control of Tobacco Product Regulations 2004 under the Food Act 1983, until control shifted to the standalone tobacco control law, Act 852, in 2024. Tobacco is still exempt from the Poisons List today.
Tobacco (which naturally contains nicotine) isn’t classified as a scheduled poison so as to enable retail sale of the product for recreational use, rather than being restricted to supply by pharmacists or medical practitioners on a prescription basis.
So, if e-cigarettes or vapes containing nicotine are to be treated like conventional cigarettes, then liquid and gel nicotine must be exempted from the Poisons List, just like tobacco.
In principle, Malaysia should have upheld case law and implemented a ban on nicotine vape immediately after the High Court made its ruling in May, regardless of the government’s appeal. But the government of the day (regardless of party) often waits for a Federal Court decision before acting on case law for any issue.
Hence, if Prime Minister Anwar Ibrahim’s administration didn’t intend to ban nicotine vape, Putrajaya could have bought itself time — i.e. maintain the status quo with Act 852 by proceeding with its appeal in the nicotine case — especially when there are financial implications to the government involving hundreds of millions of ringgit in tax refunds.
But since the government legally upheld the High Court ruling by withdrawing its appeal, it now has three options, as analysed by CodeBlue below:
Option A: Ban nicotine vape
The first option is to announce that nicotine vape products are now illegal for retail sale to everyone – both adults and minors – since liquid and gel nicotine are on the Poisons List.
For clarity’s sake, Act 852 may be amended to remove jurisdiction over e-cigarettes and vapes containing nicotine so that these products are only subject to one statutory regime — Act 366 — and prohibited for recreational use outside of prescriptions by pharmacists or doctors.
But in lieu of amendments to Act 852, the government can announce that it won’t operationalise that law specifically for nicotine vapes, but simply implement a blanket ban for these products under Act 366.
To be fair to tobacco or vape businesses that complied with new regulatory requirements under Act 852 for the past three years, the government can provide a grace period of at least six months for the entire supply chain, from bulk liquid nicotine held by manufacturers to finished vape products at the retail level.
Ideally, the raw material of liquid nicotine and finished vape products containing nicotine should be required for immediate disposal and recall respectively.
The government may need to provide financial compensation to tobacco and vape businesses for eliminating duty-paid stock.
On the theoretical question of whether the government can choose not to operationalise the Poisons List instead, as opposed to not operationalising specific provisions in Act 852 related to nicotine vape, this is impossible because the Poisons List contains a whole host of poisons, not just liquid nicotine.
The only way to deal with liquid nicotine as a scheduled poison under existing legislation is to gazette a minister’s order to remove it from the Poisons List. This brings us to Option B.
Option B: Go back to the Poisons Board
The second option is for Health Minister Dzulkefly Ahmad to return to the Poisons Board for the Madani government to try a second time to exempt liquid and gel nicotine from the Poisons List, after the failure by his predecessor, Dr Zaliha Mustafa.
Although the composition of the Poisons Board has changed, it won’t likely depart from its 2023 unanimous decision to reject the proposed exemption of liquid nicotine from the Poisons List.
There has been no change in the science on the addictive and harmful nature of nicotine in the past three years that would motivate the Poisons Board to change its position.
Taking this route will also be time-consuming because the health minister must ensure “effective” consultation with the Poisons Board, as ruled by the High Court, or an “exchange of views and consideration of counterproposals”.
If the Poisons Board again rejects a government proposal to remove liquid nicotine from the list of scheduled poisons, moving ahead with delisting could trigger a second lawsuit from anti-tobacco groups.
But even if the Poisons Board endorsed a proposed exemption, Madani would likely suffer bad PR just months before an expected general election, due to negative public sentiment on vape.
Option C: Enact a one-page Act to classify tobacco and nicotine products as regular trade commodities
The Malaysian Vape Chamber of Commerce (MVCC) told CodeBlue in a statement last Friday that the government’s withdrawal of its appeal shouldn’t result in legal uncertainty for the vape industry.
Unlike the Malaysia E-Vaporizer and Alternative Tobacco Association (Mevta) that called for clarity on how Act 366 and Act 852 interact now, MVCC simply pinned its hopes on the regulation of nicotine vapes under Act 852 without mentioning the Poisons Act at all.
This is remarkably similar to brief media comments by Dzulkefly and Attorney-General Mohd Dusuki Mokhtar, both of whom merely cited Act 852 without specifying the status of liquid nicotine as a scheduled poison.
The Poisons Act 1952, which is 72 years older than the Control of Smoking Products for Public Health Act 2024, cannot be ignored.
If Madani refuses to ban nicotine vape and deems going back to the Poisons Board as a fruitless exercise, the government can take a third option of enacting a simple one-page Act of Parliament to expressly classify tobacco and nicotine products like e-cigarettes, vape, and the increasingly trendy nicotine pouch (not to be confused with nicotine gum or lozenges for smoking cessation) as regular trade commodities, not poisons.
Subsidiary legislation like a minister’s order isn’t enough because tobacco (which is exempt from the Poisons List) and liquid nicotine (which isn’t exempted because of the High Court ruling upheld by the government) are still subject to the primary Poisons Act regime and require consultation with the Poisons Board.
Act 852 was enacted and passed into law on the basis of both these products being exempted from the Poisons List. The government and Parliament never envisaged a repeal of the exemption order and liquid nicotine going back to the Poisons List.
Hence, new primary legislation, i.e. an Act of Parliament, can serve as a workaround to bypass the Poisons Act and Poisons Board entirely.
Tobacco cigarettes and nicotine vapes can continue to be regulated under Act 852, based on their classification as ordinary trade commodities under a separate new Act that would fall under the Domestic Trade and Cost of Living Ministry’s jurisdiction.
The law can simply be named: Tobacco and Nicotine Products are Regular Trade Commodities Act.
Rather than the Madani government and the vape industry both pretending that the Poisons Act doesn’t exist, they can legally ignore Act 366 when a new law classifying nicotine vapes as regular trade commodities is enacted.
The bill can be tabled as soon as the next Parliament meeting. MPs are likely to support it because tobacco is bundled together with nicotine vapes. Even if some lawmakers want vapes banned, they may not want conventional cigarettes prohibited.
It’s possible that civil society may still file a judicial review application against this new Act. But unlike the nicotine case in which the High Court deemed non-compliance with the Poisons Act and a health minister’s failure to protect public health, Parliament arguably has the power to determine how any product should be regulated, as long as it’s not unconstitutional.
Government loses tax revenue under all three options
In each of the three scenarios, the government loses all of its tax revenue from nicotine vapes that amounts to more than RM354 million as of last June 11, from when excise duty collection began in 2023.
The nicotine case filed by anti-tobacco groups started precisely because of the Ministry of Finance’s (MOF) desire to tax e-cigarette and vape liquids containing nicotine.
The taxation regime, which began in April 2023, was founded on the delisting of liquid nicotine as a scheduled poison because illegal products cannot be taxed; they can only be confiscated.
This was affirmed as much by an October 2023 affidavit filed in the High Court by Treasury secretary-general Johan Mahmood Merican, who said cancelling the exemption order would invalidate the government’s collection of excise duties.
Given that the government collected RM44.11 million in excise duties on e-cigarettes and vape from January 1 to June 11, 2026, according to Dzulkefly’s July 28 written Dewan Negara reply, Putrajaya collects an average of RM8 million monthly from this tax.
These owed tax refunds will mount with each passing month if MOF doesn’t announce an immediate cessation of excise duty collection.
Under Option A of a nicotine vape ban, the government must refund all excise duties paid by tobacco and vape businesses on e-liquids containing nicotine from 2023.
Putrajaya also cannot collect future excise duties if the government bans nicotine vapes, except on those supplied by pharmacists or doctors on a prescription basis.
However, as the Ministry of Health (MOH) doesn’t adopt a harm reduction approach for nicotine vapes, it’s unlikely that the Malaysian medical fraternity will prescribe these for smokers who want to quit smoking, pending the creation of clinical practice guidelines.
Under Option B of returning to the Poisons Board, even if the health minister were to gazette another exemption order, the government must still refund excise duties paid from 2023 until the date of the new minister’s order. A fresh collection of excise duties can begin after.
Under Option C of enacting a new Act to classify tobacco and nicotine products as ordinary trade commodities, the government will similarly lose all excise duties collected from 2023 until that new law is gazetted.
Nicotine case significant due to taxation and industry
Even if the MOH and MOF continue to remain silent — which is bizarre considering that the government itself chose to withdraw its appeal — money always talks.
Unlike other public interest cases involving civil liberties, the implications of the government’s withdrawal of its appeal in the nicotine case are especially significant because it involves taxation and industry.
In a tongue-in-cheek manner, the vape industry is essentially paying “protection money” to the State for legitimacy of its nicotine products.
Some vape companies may file an application for judicial review of the government’s withdrawal of its appeal to resolve legal uncertainty triggered by that withdrawal.
This might be premised on businesses’ “legitimate expectation” of the government to uphold the statutory regime of nicotine vapes being subject solely to Act 852 and being free from the constraints of the Poisons List.
Such litigation is separate from potential lawsuits by businesses to recover payment of excise duties on e-cigarette and vape liquids containing nicotine.
Businesses in whatever sector can only operate in a clear legal and regulatory environment. Vape associations say the industry invested in building a legal market of products, jobs, and regulatory compliance after Madani regularised nicotine vapes under Act 852.
Even if the current government were to issue a milquetoast press statement that nothing has changed and that it’s “ignoring” the Poisons Act, businesses need legal backing carved in stone, beyond verbal statements that can be changed by capricious politicians at any time under any administration.
Crucially, Madani only has a year or so left in office. So even if the vape industry might be disinclined to sue the government for restitution of tax payments — as this would signal their position that nicotine vapes are illegal — no one knows who will form the next administration or what it will do.
A newly elected government may act on Madani’s withdrawal of its appeal by immediately banning nicotine vape as a populist measure that also promotes public health.
While Anwar’s administration remains undecided on the issue, businesses might take this lead time ahead of the general election to downscale the nicotine vape market and cut their losses by suing for tax refunds or financial compensation.
