By Eynez Syazmeena | Focus Malaysia

The Kuala Lumpur High Court was informed today that the Parliament has already passed a bill prohibiting the sale of nicotine-containing vapes and e-cigarettes to individuals under the age of 18.

Senior federal counsel Ahmad Hanir Hambaly asserted that Health Minister Dr Zaliha Mustafa had the authority to remove nicotine liquid and gel from the list of controlled substances under the Poisons Act 1952 on March 31 of this year.

Representing the minister in the face of a judicial review initiated by three health-related non-governmental organisations (NGOs) – the Malaysian Council for Tobacco Control (MCTC), the Malaysian Green Lung Association (MGLA) and Voice of the Children (VOC).

Hanir noted that the Control of Smoking Products for Public Health Bill was passed by the Dewan Rakyat on Nov 30. This bill, a modified version of the generational endgame (GEG) bill, plays a role in supporting Dr. Zaliha’s decision to delist nicotine liquid and gel as scheduled poisons.

The GEG bill initially aimed to prohibit those born after Jan 1, 2007, from purchasing or engaging in smoking. Hanir highlighted that with the passage of the bill, minors under 18 are now prohibited from smoking nicotine-containing vapes and e-cigarettes, and vendors are forbidden from selling such products to minors.

However, the NGOs argued that Dr. Zaliha’s decision might lead to the easy availability of nicotine-containing vapes and e-cigarettes to children. Hanir defended Dr. Zaliha’s decision, stating that it was part of government efforts related to taxation as a means to control the distribution of smoking products in Malaysia.

In response, the NGOs’ counsel Edmund Bon countered that the new bill has not yet been ratified into law by the Dewan Negara, making it unenforceable against the sale of nicotine-containing liquids and gel products to children.

Edmund also pointed out that at the time of Dr Zaliha’s decision on March 31, there was no law forbidding the sale of these products to minors.

Furthermore, Judge Wan Ahmad Farid Wan Salleh set Feb 7, 2024 for a decision on whether to allow the judicial review.

On March 31, the Health Ministry exempted nicotine from the list of controlled substances under the Poisons Act with plans to introduce a new bill regulating smoking products and devices including nicotine in liquids and gels used in e-cigarettes and vapes.

Meanwhile, in the run-up to the exemption, Malaysian Medical Association president Dr Muruga Raj Rajathurai expressed concern that once nicotine is removed from the Poisons Act, vapes containing the substance can then be sold to the public legally, with no control to prohibit the sale of these items to minors.

The three NGOs then filed their legal challenge on June 30.