When I broke the story last month on Health Minister Dzulkefly Ahmad and the government’s withdrawal of their appeal against a High Court ruling in a landmark nicotine case, I initially thought that this signalled Madani’s intent to ban nicotine vape.
That’s why I described it as a “stunning move”. I figured that after a string of state election losses, Madani would want to institute a blanket prohibition on nicotine vape (which has been repeatedly promised by Dzulkefly anyway) as a sign of reform.
But Prime Minister Anwar Ibrahim’s administration, crucially the Ministry of Health (MOH), has remained strangely silent after the withdrawal of its appeal.
The High Court ruled in May that a 2023 order gazetted by then-Health Minister Dr Zaliha Mustafa to exempt liquid and gel nicotine used in e-cigarettes and vape from the Poisons List under the Poisons Act 1952 (Act 366) was unlawful.
Dropping its appeal means that the government upholds the court’s repeal of that exemption.
Hence, e-liquids containing nicotine are now a scheduled poison because there are only two nicotine-related exemptions from the Poisons List: tobacco and registered nicotine patch or gum for smoking cessation.
“All preparations” of nicotine – except those two specific products – are classified as Group C poisons that can only be dispensed by licensed pharmacists or registered medical practitioners.
The MOH said last June that the sale of oral nicotine pouches for recreational use is prohibited because the product is a Group C poison.
By that same logic, nicotine vapes are also illegal because this product isn’t exempt from the Poisons List either, due to the High Court judgment.
Sheer Incompetence: First Lacuna, Now Accidentally Making Nicotine Vape Illegal
So why did Madani drop its appeal if it didn’t intend to prohibit nicotine vape for everyone? I can only surmise sheer incompetence by the government that has sleepwalked into a ban.
This isn’t a surprise considering that Madani created a lacuna in the law – allowing nicotine vapes to be sold to minors for one and a half years – by exempting liquid nicotine from the Poisons List prior to the enactment of the Control of Smoking Products for Public Health Act 2024 (Act 852).
Somehow, the government forgot that the reason why liquid nicotine was exempted from the Poisons List to begin with was to legalise nicotine vapes to enable taxation.
After Act 852 came in, liquid nicotine had to stay off the Poisons List, similar to how tobacco is exempt from the list of scheduled poisons to enable sale for recreational use, subject to controls under Act 852 (previously, tobacco control regulations under the Food Act 1983).
Putrajaya also inexplicably forgot about Treasury secretary-general Johan Mahmood Merican’s 2023 affidavit that said cancelling the liquid nicotine exemption order would invalidate the government’s collection of excise duties.
The nicotine case began with Dr Zaliha breaching her duty to protect public health (as judged by the High Court) and ended with Dzulkefly hoisting financial implications of more than RM354 million onto the government.
If the first health minister’s removal of liquid nicotine from the Poisons List affected the general public, the second health minister keeping liquid nicotine on the Poisons List affects the government and industry.
While Dr Zaliha’s actions triggered a lawsuit by anti-tobacco groups, Dzulkefly’s actions may trigger a lawsuit by tobacco and vape companies.
Different Reasons For Another Potential Rejection By Poisons Board
Now, Madani must do damage control if it wants to legalise nicotine vapes once more.
But the Poisons Board is highly unlikely to depart from its unanimous 2023 position to oppose the delisting of liquid nicotine.
Three years ago, the Poisons Board said “no” because the exemption would create a lacuna in the law, while tabling and passage of a tobacco and vape control bill remained uncertain.
Today, the situation concerning vapes has changed due to the abuse of e-cigarettes adulterated with narcotics like “Piu Piu” that has been highlighted in numerous videos on social media, showing users acting like zombies or behaving erratically.
Hence, there is now support from law enforcement and the general public for a total ban on vapes.
Since last year, Singapore began treating vapes like illicit drugs due to the emergence of etomidate-laced vapes, known as Kpods, with stiffer fines and state-mandated rehabilitation for using or possessing even regular vapes. Suppliers of drug-laced vapes will face up to 20 years in jail and 15 strokes of the cane.
So, if the health minister were to go to the Poisons Board today to exempt liquid nicotine from the Poisons List in an effort to legalise nicotine vape, the Board will reject the proposal if it now wants a complete ban on vape.
Two Decades Too Late For Act 852
Act 852, while commendable as Malaysia’s first standalone tobacco and vape control Act, was two decades too late.
By the time Dewan Negara approved the Control of Smoking Products for Public Health Bill 2023 in December 2023, with regulations coming into force in October 2024, the context of vape already changed.
Now, vape is banned in all Asean countries except Indonesia and the Philippines. These health ministers can talk about it when they come to Kuala Lumpur next Monday for the 17th Asean Health Ministers’ Meeting.
Act 852’s narrow focus on “smoking products” is also outdated because it doesn’t regulate nicotine pouches that are trending among adolescents and young people not just in Malaysia, but around the world.
The World Health Organization (WHO) said in a press release last May that retail sales of nicotine pouches reached over 23 billion units in 2024, increasing by more than 50 per cent from the previous year.
Youths are reportedly attracted to nicotine pouches because these small pouches, which sit between the gum and lip, are discreet and marketed as a “tobacco-free” alternative to smoking or vaping. However, nicotine can harm brain development into the mid-20s. Other concerns with nicotine pouches include cancer.
Never mind new nicotine pouches, but the “smoking products” term and name of Act 852 isn’t accurate for traditional smokeless tobacco products like chew and dip that have been around for centuries (even if the law technically regulates them). Legislation must be clear to the public, not just technocrats in Putrajaya.
In any case, all nicotine products except tobacco and the patch or gum for smoking cessation are illegal in Malaysia because they’re scheduled poisons.
If the government of the day, whether Madani or the next administration, intends to ban nicotine vape and pouches, it can keep them on the Poisons List and draft specific regulations under Act 852 targeting these products for stricter enforcement of prohibitions.
Implications Extend Beyond Vape Supply Chain To Insurance, Bank Loans
Vape businesses and consumers are hanging their hats on Act 852 while ignoring Act 366.
This is akin to a hypothetical scenario of the government enacting a separate Act to regulate the registration, sale, and standards of cannabis products for recreational use, but leaving cannabis on the Dangerous Drugs Act 1952 (DDA) and taxing it.
If Malaysia wants to legalise marijuana, for example, it cannot remain an illicit drug on the DDA.
Likewise, if nicotine vape is to be legal, it cannot remain a scheduled poison under Act 366, regardless of Act 852 that determines how smoking products are to be registered, packaged, and sold etc.
It’s irresponsible of the government to continue remaining silent when an entire industry and jobs are at stake.
Beyond the supply chain involving manufacturing, import, and retail, insurance might refuse to cover vape factories or stores because they could be carrying illegal products. Banks similarly might reject loan applications for new companies wanting to sell nicotine vapes.
Even though tobacco and vape companies are entitled to refunds of excise duties paid on nicotine vape products since 2023, following the High Court ruling, they may be reluctant to initiate litigation because that could force the government’s hand and trigger a chain of events.
Without MOF suspending excise duty collection while Madani figures out what it wants to do, it’s understandable for the industry to continue selling nicotine vapes to adults under Act 852. After all, how can an illegal product be taxed?
However, I argue that even if the State is behaving irresponsibly by refusing to take action on its own litigation decisions – either by announcing a ban on nicotine vape or attempting to exempt liquid nicotine from the Poisons List again – vape businesses are obliged to follow the law.
The government of the day sometimes exempts itself from the rules and standards that it imposes on the private sector, such as the Personal Data Protection Act 2010 or the Private Healthcare Facilities and Services Act 1998.
But businesses and ordinary citizens must still obey the law.
Tax Refunds Owed Carry Through Next Government
A vape association previously called for a transition period of at least six months for the entire supply chain of nicotine vapes if Putrajaya decides to ban the product.
Since the 16th general election is only due by February 2028, the vape industry has more than a year from now for that so-called “grace period” to downscale manufacturing of e-liquids containing nicotine and clear stocks of finished vape products.
The next elected government should act on Madani’s withdrawal of its appeal by instituting an immediate ban on nicotine vapes, without any grace period whatsoever.
If tobacco and vape companies want to sue Putrajaya for tax refunds, they can do so, although the next government should be responsible enough to institute a fair and timely restitution mechanism for more than RM354 million in excise duties collected on nicotine-containing vape liquids since 2023.
This debt owed by the Malaysian government, which grows by an average of RM8 million a month, carries through regardless of which party is in power.
However, businesses’ “legitimate expectation” for the continued legalisation of nicotine vape applies only to Madani.
A subsequent administration has the right to set its own policies on vape and other nicotine products in line with its public health goals.
Having said that, continued taxation could be fair grounds for tobacco or vape companies to file a lawsuit after GE16 on the basis that the Government of Malaysia had an obligation to continue recognising the legality of nicotine vapes.
Nicotine vape has turned out to be a poisoned chalice, with the government initially thinking that it could obtain tax revenue but may now end up losing everything in a short-sighted attempt to sacrifice public health for money.
Boo Su-Lyn is the co-founder and editor-in-chief of CodeBlue.
- This is the personal opinion of the writer or publication and does not necessarily represent the views of CodeBlue.
