By Ida Lim | Malay Mail
The High Court today dismissed three civil society groups’ application to temporarily bring nicotine-containing vape liquid and vape gels back under the Health Ministry’s regulation and control.
The three civil society groups had wanted the court to make a court order to effectively temporarily restore vape liquid in the Poisons List until their lawsuit against the Health Minister is heard but were unsuccessful today.
According to health news site CodeBlue, High Court judge Datuk Wan Ahmad Farid Wan Salleh rejected an application by the three civil society groups to “stay” or suspend Health Minister Dr Zaliha Mustafa’s March 31 decision to remove such e-cigarette liquids from the Poisons List.
In dismissing the stay application, the judge said the three civil societies needed to show that there were special circumstances to justify the stay of the Health Minister’s March 31 order.
When contacted by Malay Mail, Senior Federal Counsel Ahmad Hanir Hambaly @ Arwi — who is representing the government and Health Minister — confirmed that the High Court had dismissed the stay application today.
According to Ahmad Hanir, the judge had dismissed the stay application by saying that the civil society groups had not put forward reasons and special circumstances to justify a stay order.
When contacted by Malay Mail, the civil society groups’ lawyer K. Shanmuga said the stay application was dismissed with no order as to costs, and said the High Court had said his clients’ papers did not sufficiently particularise the grounds for the stay.
But Shanmuga said the High Court did agree to hear the lawsuit urgently and had scheduled it to be heard on December 6.
Lawyers Kee Shu Min and Evangeline Yii also appeared for the three civil society groups today when the court decision was delivered through the video-conferencing platform Zoom.
As part of the court case, the three civil society groups — Malaysian Council for Tobacco Control, the Malaysian Green Lung Association, and Voice of the Children Sdn Bhd — had applied for an interim stay on the Health Minister’s March 31 order to drop vape liquid and vape gel from the Poisons List.
Before the removal of vape liquids and vape gels from the Poisons List, it would have been illegal to sell such products — which were listed as poison — to children except for medical treatment. These products can now be sold openly and legally to children.
If the three civil society groups had succeeded in getting an interim stay, it would have temporarily placed such vape liquid products back under the Health Ministry’s regulation and prevent such products from being sold openly and legally to children.
Previously, when arguing for a stay to be granted, the civil society groups’ lawyer Edmund Bon had said that non-regulation of vape liquid meant that any level of nicotine in such products would be permissible legally now, and highlighted the danger to children’s health since these products are now freely available to them. He had also argued there were special circumstances to justify a stay.
The civil society groups previously claimed that the removal of vape liquids from the Poisons List was allegedly to allow the government to impose a tax on e-cigarette and vape liquids containing nicotine, noting that the Finance Ministry had from April 1 onwards imposed an excise duty of 40 sen per ml on e-cigarette and vape liquids with nicotine.
Previously Bon had also argued that the government would not be harmed economically if the interim stay is granted, as it could still collect backdated taxes on vape liquids and vape gels if the civil society groups were to fail in their lawsuit and the interim stay — if granted — is lifted.
The Attorney General’s Chambers (AGC) previously objected to the interim stay application based on various reasons, including by arguing that there are no special circumstances to justify a stay.
In the lawsuit filed on June 30, through a judicial review application, the civil society groups want the court to cancel the Health Minister’s removal of vape liquids and vape gels from the Poisons List, or effectively to restore regulation over such products.