By Alifah Zainuddin | CodeBlue
The High Court here today allowed the Malaysian Council for Tobacco Control (MCTC), the Malaysian Green Lung Association (MGLA), and Voice of the Children (VOC) to initiate a judicial review against the declassification of liquid and gel nicotine from the Poisons Act 1952.
High Court judge Justice Wan Ahmad Farid Wan Salleh delivered the decision in today’s hearing, after the Attorney General’s Chamber (AGC) chose not to oppose the anti-tobacco and children’s rights groups’ application for leave.
However, the AGC objected to applicants’ bid for a stay on Health Minister Dr Zaliha Mustafa’s order last March 31 that exempted liquid and gel nicotine used in e-cigarettes and vaporisers from the Poisons List.
The government argued that there were no special circumstances to justify stay proceedings and likened it to an injunction.
Senior Federal Counsel Ahmad Hanir Hambaly, representing the AGC, said that the government does not sanction vaping or e-cigarette use.
“What the government did, in this case, is they introduced the said exemption order, and as stated by the applicants in their affidavit, the government, with the exemption order, implemented an excise duty.
“Now, perhaps, for certain quarters, this might seem as an economic reason per se, but it is a form of control, Your Honour, on vape and e-cigarettes,” he said during the virtual court hearing.
Ahmad Hanir referenced Article Six of the World Health Organization (WHO) Framework Convention on Tobacco Control, noting: “Parties recognise that price and tax measures are an effective and important means of reducing tobacco consumption by various segments of the population, in particular young persons.”
Legal counsel Edmund Bon, Shanmuga Kanesalingam, Kee Shu Min, and Evangeline Yii — representing MCTC, MGLA, and VOC — argued that the liquid nicotine exemption exposed children to the unfettered purchase of e-cigarettes and vapes, due to a lack of regulations prohibiting sales to minors.
“Given the dangers of vape and e-cigarettes, liquid or gel nicotine is now freely available for children. There is a clear, grave and obvious danger to public health particularly, children’s health if the Impugned Exemption is allowed to stand in the meantime.
“Apart from these products falling into the hands of children, there will likely be an increase in EVALI deaths, and thereby also increasing the costs of public health care. The harm will be irreparable.
“We already saw the likely ill-effects of the Impugned Exemption since its effective date when on June 5, 2023, MOH issued a media statement stating that on May 30, 2023, a two-year-old child was likely poisoned by nicotine and was admitted to hospital having seizures, severe coughing, vomiting and shortness of breath with a vape device found near her at the time of the incident,” Bon said.
In a supporting affidavit on behalf of respondents, Norazman Ayob, the Ministry of Health’s (MOH) Deputy Secretary General (finance), said that the government’s decision to remove liquid and gel nicotine from the Poisons List was not an endorsement by the government or the MOH of e-cigarettes or vape.
Norazman cited the tabling of the Control of Smoking Products for Public Health Bill 2023 for first reading in the Dewan Rakyat last June that was subsequently referred to the health Parliamentary Special Select Committee (PSSC).
“Following the Impugned Order, the government imposed excise duty on liquid and gel nicotine and this action was in line with the government’s commitment, where taxation is a form of control that can be implemented to reduce the use of cigarettes and tobacco, including electronic cigarettes and vape that are smoking products in this new age.”
Bon, however, argued that this was a contradiction, saying: “Surely a total ban as it was before is better than allowing it to be sold freely?”.
Referencing CodeBlue’s June 21 report “How Malaysian Youths Can Get Vape on Demand”, Bon pointed to the availability of disposable vapes or vape pods containing high nicotine concentrations not found in regulated vape markets, like the United Kingdom, Australia, and the United States.
Nicotine is toxic at 60 mg per ml (six per cent) concentration. A typical pack of cigarettes in Malaysia tends to contain 20mg of nicotine, with each stick containing 1.0mg of nicotine.
Bon highlighted a recognised gap or “lacuna” in the law following the Health Minister’s exemption order, urging the court to address the gap and allow the stay to forestall exploitation pending the order’s challenge.
“This gap has not been closed. Given the gap, this Honourable Court should allow the stay to avoid the gap from being exploited while the Impugned Order is being challenged.”
Addressing the notion of special circumstances, Bon stated, “We have demonstrated that these special circumstances include the need to avert further harm to public health and prevent EVALI deaths.”
In relation to the government’s view that a stay was akin to an injunction — restricted by the Government Proceedings Act and Specific Relief Act — Bon referenced the case of Sugumar Balakrishnan v, Pengarah Imigresen Negeri Sabah & Anor & Another Appeal  3 CLJ 85.
It was established that a stay differs from an injunction, as the former temporarily suspends public law effects pending certiorari or prohibiting proceedings, while the latter pertains to party restraints.
Consequently, section 54(d) of the Specific Relief Act 1950 and section 29(2) of the Government Proceedings Act 1956 do not hinder the Court’s authority under Order 53 rule 3(5) of the Rules of Court (ROC). Additionally, section 29 does not extend to judicial review cases.
Justice Wan Ahmad Farid set September 5 to deliver his verdict on the application to stay the Health Minister’s exemption order.
The judicial review application by MCTC, MGLA, and VOC was filed last June 30 in the High Court here, after the government failed to secure passage of the Control of Smoking Products for Public Health Bill in the last Dewan Rakyat meeting, sending it last June 12 instead to the Health PSSC after first reading.
The lawsuit by the anti-tobacco and child rights groups sought to challenge the order gazetted by Dr Zaliha last March 31 that exempted liquid and gel nicotine used in e-cigarettes and vaporisers from the list of scheduled poisons under the Poisons Act; the Health Minister had vetoed unanimous objection from the Poisons Board to the proposed declassification.
This effectively legalised the sale of e-cigarettes and vape with nicotine, an addictive substance, to anyone, including children and teenagers aged below 18, due to the absence of regulations on such nicotine products. There are no restrictions prohibiting sale to minors or other restrictions on sales; nicotine content level; advertising, promotion and sponsorship; or packaging and labelling.
MCTC, MGLA, and VOC named the Health Minister and the government as the first and second respondent respectively in their lawsuit. Dr Zaliha was described as the current Health Minister and the minister at the material time.