KUALA LUMPUR, Sept 11 — Health Minister Dzulkefly Ahmad seems to have broken his promise to call a media briefing on a landmark nicotine case before an ongoing Asean health ministers’ meeting here.
Pending a statement from the Ministry of Health (MOH) and Ministry of Finance (MOF), CodeBlue believes that the Madani administration will likely table a bill to enact a new Act of Parliament – as soon as the next Parliament meeting – to expressly classify tobacco and other nicotine products as regular trade commodities, not poisons, in order to bypass the Poisons Act 1952 (Act 366) and the Poisons Board entirely.
No one is above the law. That includes the government, which will be anxious to resolve a self-inflicted legal quandary as a result of the withdrawal of its appeal in the nicotine case that unintentionally left liquid and gel nicotine used in e-cigarettes and vape on the Poisons List.
Despite the High Court ruling and withdrawal of the government’s appeal, the Customs Department continues to collect excise duties on e-cigarette and vape liquids containing nicotine, indicating Madani’s preference for nicotine vape to remain a taxable good and legal product for recreational use.
Pressure from vape businesses and consumers on Putrajaya to resolve the regulatory conflict comes amid financial implications to the government of more than RM354 million in tax refunds and a looming threat of litigation from an RM3.48 billion vape industry to avoid going up in smoke.
This isn’t a case of the authorities quietly declining to enforce a ban under the Poisons Act, but an issue that requires active resolution because it involves business and taxation.
The health minister isn’t likely to return to the Poisons Board for another attempted exemption of liquid nicotine from the Poisons List because the Board will probably maintain its objection in order to completely ban nicotine vape this time.
Putrajaya is also unlikely to try to touch the Poisons List again (for nicotine-related purposes) to avoid another costly misstep. Dr Zaliha Mustafa was the first health minister in the history of the Poisons Board, established pre-Merdeka in 1956, to reject its advice, subsequently triggering the lawsuit by anti-tobacco groups and the High Court decision cancelling her 2023 exemption order.
Amending Section 6 of Act 366 to eliminate a requirement for the health minister to consult the Poisons Board before amending the Poisons List is unfeasible because this would affect all scheduled poisons beyond nicotine.
Hence, the government has very few options on the table if it doesn’t intend a blanket prohibition on nicotine vape.
Even though tobacco is already exempt from the Poisons List (and hence, legal for retail sale outside clinical settings), the government will probably still bundle tobacco together with other nicotine products under a new bill classifying these as regular trade commodities to sidestep Act 366 and the Poisons Board.
Putrajaya’s explanation to MPs and the public will be simple: the Control of Smoking Products for Public Health Act 2024 (Act 852) already exists to regulate smoking products, including tobacco and other nicotine products.
Classifying tobacco and other nicotine products expressly as ordinary trade commodities, not poisons, means that nicotine vape can continue to be legally sold to adults for recreational use, subject to strict controls under Act 852.
Madani can state clearly that it doesn’t intend to ban nicotine vape because prohibitions generally don’t work and it’s more effective to regulate these products than to curb a black market.
Classifying tobacco and all other nicotine products as regular trade commodities also gives the government of the day leeway to legalise and regulate new and emerging nicotine products like oral nicotine pouches under Act 852, instead of the health minister needing to consult the Poisons Board every time for an exemption from the Poisons List.
All preparations of nicotine – be they vape liquids containing nicotine or nicotine pouches – are currently scheduled as Group C poisons under Act 366 that can only be dispensed by a licensed pharmacist or registered medical practitioner, except for two products that are exempted from the Poisons List: tobacco and registered nicotine patch or gum for smoking cessation.
Lastly, the government can argue that decisions on banning or legalising any substance, including nicotine, should rest with the Legislature as a matter of policy, not a small group of 11 experts in the Poisons Board nor the Judiciary.
Although the bill for this new Act can be a simple one-page document, the government can, at the same time, also introduce an Act 852 amendment bill to transfer control of the tobacco and vape control law to the Domestic Trade and Cost of Living Ministry (KPDN).
This is to harmonise with the Act that classifies tobacco and other nicotine products as regular trade commodities.
KPDN previously told CodeBlue that it had no jurisdiction over the control of nicotine vapes, which it said was under the MOH, describing nicotine as a “poison that directly affects public health, not an ordinary trade commodity”.
However, if Prime Minister Anwar Ibrahim’s administration wants to treat nicotine as an ordinary trade commodity (in order to legalise nicotine vape), then it’s only logical for regulation of that commodity to rest with KPDN, not MOH.
KPDN is already in charge of drug price displays, even though medicines may contain substances on the Poisons List. So the government may not see a problem with giving the domestic trade ministry control of tobacco and nicotine products, which are arguably easier for laymen to understand than other pharmaceuticals.
If this were to happen, the MOH would have spent more than a decade of work on a standalone tobacco law, which only got enforced in October 2024, only to cede tobacco and nicotine control to KPDN.
This potential outcome would be ironically caused by blunders from two health ministers in the Madani government: Dr Zaliha’s exemption of liquid nicotine from the Poisons List before the enactment of Act 852 and Dzulkefly’s withdrawal of his appeal in the nicotine case, even though an exemption is necessary as the instrument of legalisation of nicotine vape.
A potential issue with KPDN assuming jurisdiction of tobacco and nicotine control is that if the ministry is pro-consumer, it may reject efforts to raise tobacco excise duties.
However, various administrations, including Madani, were already disinclined to significant hikes in tobacco taxes. Hence, this attitude likely won’t change even if another ministry were to take over tobacco and nicotine control from the MOH.
Pharmacists, Anti-Tobacco Activists Oppose Classifying Nicotine As Ordinary Trade Commodity
When contacted for comments on a potential scenario of the government and Parliament enacting and approving a new Act of Parliament to classify tobacco and other nicotine products as regular trade commodities, pharmacists and anti-tobacco activists condemned the proposal.
Malaysian Council for Tobacco Control (MCTC) secretary-general Muhammad Sha’ani Abdullah said Parliament shouldn’t create a “legal fiction” by declaring nicotine as an ordinary trade commodity, simply to bypass Act 366 and avoid the statutory role of the Poisons Board.
“Nicotine does not become less toxic because Parliament changes its legal label; countries such as Australia and Singapore demonstrate that tobacco products can be regulated separately while nicotine remains subject to poison or medicines controls,” Sha’ani told CodeBlue last Tuesday.
“Likewise, Act 852 is fundamentally a public health law. Transferring its control wholesale to KPDN would weaken rather than strengthen Malaysia’s tobacco control regime.”
Prof Dzulkifli Abdul Razak, who is a neuropharmacologist and recipient of Malaysia’s Tobacco Control Icon Award 2023, similarly opposed classifying tobacco and other nicotine products as ordinary trade commodities and taking tobacco control powers away from the MOH.
“It must be recalled that the action to delist nicotine vape was unilaterally taken by the then health minister against the professional opinions of almost all large medical and health fraternities in Malaysia,” Dzulkifli told CodeBlue last Tuesday.
“Such undemocratic action has no place on matters affecting the health of the rakyat in general, and the innocent and young in particular. The High Court decision has made this very clear, and there is no reason to further delay it.”
He described tobacco and nicotine control as an issue of health and quality of life, not trade or economics, as emphasised by the High Court judgement.
“This is the crux of the problem that the MOH and government overlooked. They must not abdicate their responsibility after creating the mess in the first place,” said Dzulkifli.
“In fact, they must apologise and pay compensation to those affected by the incompetent collective action against the wishes of health care professionals and the rakyat. Parliament must be held accountable for this.”
A clinical pharmacist in public service pointed out that Dzulkefly (a toxicologist by training) had announced in December 2025 that the question was no longer whether vape would be banned, but when, and that the Cabinet had agreed in principle on that direction.
“That commitment is the benchmark against which any new proposal should be measured,” the pharmacist told CodeBlue on condition of anonymity because civil servants are prohibited from speaking to the media.
“If the policy direction is towards a ban, it is difficult to reconcile that with legislation reclassifying nicotine as an ordinary trade commodity in order to bypass the Poisons Act.”
He stressed that nicotine isn’t an ordinary consumer product, but a highly addictive and toxic substance.
“The controls under Act 852 – meaning product registration, ingredient declaration, laboratory analysis, and the 20mg/ml limit – are public health functions by design. A general commercial trade framework was not built to carry them, nor to restrict marketing and access to minors with the same intent.”
The clinical pharmacist opined that legislating around Act 366 and the Poisons Board would mean that scheduling under the Poisons Act was no longer a technical determination made on toxicological grounds.
“That precedent would extend to every other Group C substance that pharmacists are responsible for controlling,” he said.
“On enforcement, KPDN has a reasonable supporting role in retail controls. That is different from transferring the regulatory framework itself. The Ministry of Health is accountable for disease prevention and population health, while KPDN is accountable for trade, markets, and pricing. Both matter, but they are not interchangeable.
“If this is the intended direction, the government should explain what has changed in the evidence. As far as the toxicology of nicotine is concerned, nothing has. For those of us who have spent years on the enforcement side of Act 852, it would be a sad thing to watch that work reversed by a change of label.”
Malaysian Pharmacists Society (MPS) president Prof Amrahi Buang said his association remained firm in its position that vape should be banned.
“So now, it depends on the government on what they want to do. If they want to regulate outside of the Poisons Act, then it’s their prerogative,” Amrahi told CodeBlue last Tuesday.
“We’ll see which MPs support or do not support it. They’re supposed to make decisions on behalf of the people for the safety of the rakyat. When we talk about the cost of a life, you cannot measure it with money.”
