By Rahmat Khairulrijal | New Straits Times
The High Court today ruled that the government’s decision to remove liquid nicotine used in vape and e-cigarette products from the poisons list was irrational and made without proper consultation with the Poisons Board.
Judge Datuk Aliza Sulaiman allowed a judicial review application brought by three non-governmental organisations (NGOs) challenging the exemption introduced through the Poisons (Amendment of Poisons List) Order 2023.
The applicants were the Malaysian Council for Tobacco Control, the Malaysian Green Lung Association and Voice of the Children.
The judge said then health minister Dr Zaliha Mustafa’s decision to exempt nicotine liquids and gels used in vape and e-cigarette products was primarily driven by economic considerations linked to the imposition of excise duties on vape products announced in the 2023 Budget.
She said evidence before the court showed the exemption was introduced to enable the government to tax vape products containing nicotine, with revenue intended to be channelled towards health initiatives.
“Despite recognising that electronic cigarettes and vape liquids are dangerous to health, and that Malaysia is obliged to regulate and restrict their supply, sale and use, the first respondent (Dr Zaliha) proceeded to make the impugned order to give effect to the decision regarding taxation,” she said.
The court said the exemption created a legal loophole lasting about one year and seven months before the Control of Smoking Products for Public Health Act 2024 came into force on Oct 1 last year.
Aliza said consultation with the Poisons Board did not meet the requirements under Section 6 of the Poisons Act, which empowers the minister to amend the poisons list through a gazetted order after consulting the board.
“The consultation under the law must be conscious, meaningful, purposeful and effective.
“In this case, there was no physical meeting between the minister and the board, nor any further discussions after the board unanimously rejected the proposal to exempt nicotine liquids and gels from the poisons list.
“The alleged consultation by the first respondent was merely formal compliance,” she said, adding that the decision appeared to have been effectively predetermined.
“If I can put it rather crudely, it was almost like a done deal.”
The court made no order as to costs, as the matter was of public interest.
The applicants filed the suit at the High Court in July 2023, naming Dr Zaliha and the government as the first and second respondents, respectively.
They are seeking a court order declaring the Health Ministry’s directive to remove nicotine from the Poisons Act null and void.
On April 1, 2023, the Health Ministry published a gazette notice stating that nicotine liquids and gels used in e-cigarettes and vape products had been granted exemption from poisons control.
