By Nurbaiti Hamdan | The Star
The High Court has ruled that the government’s decision to de-list liquid nicotine from the Poisons Act 1952 was “irrational”.
Justice Aliza Sulaiman said this in her decision allowing a judicial review filed by three non-governmental organisations (NGO) against the Health Ministry and the government for de-listing nicotine liquids and gels used in e-cigarettes from the poisons list.
“I am satisfied that the applicants have established that the Health Minister’s decision in making the impugned exemption was motivated primarily by economic reasons, prior to the implementation of Act, is irrational and thus, the first issue (on rationality) is answered in the affirmative,” the judge said here on Friday (May 15).
The court found that the main factor in the Health Ministry’s decision to de-list liquid nicotine was due to the tabling of the 2023 Budget, where the Finance Minister had proposed to impose excise duties on e-cigarettes and vape liquids containing nicotine.
The Dewan Rakyat approved the 2023 Budget on March 9, 2023, and the Finance Minister then informed the Health Minister “to implement actions consistent with the recommendation, subject to the regulations of the Poisons Act 1952.”
By legalising liquid or gel nicotine in electronic cigarettes and vapes, the government, who is the second respondent, can tax such products and revenue collected channelled towards health initiatives by the Healthy Ministry, the court said.
“Hence, despite recognising that e-cigarettes and vape liquids are dangerous to health and that Malaysia is obliged to regulate and restrict their supply, sale and use, the Health Minister proceeded to make the impugned order which included the impugned exemption to give effect to the decision regarding taxation,” Justice Aliza said.
The court also agreed with the applicants’ submission that the Health Minister had breached the duty to protect public health and failed to act in accordance with Malaysia’s international commitments under the United Nations Convention on the Rights of the Child and the World Health Organisation Framework Convention on Tobacco Control to prevent and reduce nicotine addiction when she made the impugned order and included the impugned exemption.
On the applicants’ claim that the ministry did not conduct proper or adequate consultation with the Poisons Board prior to the decision, the court found that the alleged “consultation” as claimed by the respondents was merely a formality instead of an effective consultation that would carry exchange of views and counter-proposals.
On Oct 14, 2023, the three NGOs, as applicants, obtained leave from the High Court to initiate a judicial review against the Health Ministry and the Malaysian government as respondents.
They sought a court declaration that the insertion of the impugned exemption into the Poisons List was carried out without proper or adequate consultation with the Poisons Board and was therefore ultra vires Section 6 of the Poisons Act.
