By Hidir Reduan Abdul Rashid | Malaysiakini

Parliament has already passed a bill to forbid the sale of nicotine-containing vapes and e-cigarettes to those under 18, the Kuala Lumpur High Court heard today.

Senior federal counsel Ahmad Hanir Hambaly submitted that it was within the power of Health Minister Dr Zaliha Mustafa to decide to remove nicotine liquid and gel from the list of controlled substances under the Poisons Act 1952 (Act 366) on March 31.

Acting for the minister who is targeted by a judicial review of three health-related NGOs, Hanir pointed out that the Dewan Rakyat passed the Control of Smoking Products for Public Health Bill on Nov 30.

He said the passed bill is a modified version of the initial Generational End Game (GEG) bill that formed part of the backdrop for her decision to delist nicotine liquid and gel as a scheduled poison.

GEG referred to the now-scrapped parliamentary bill to forbid those born after Jan 1, 2007, from buying or partaking in the act of smoking.

“With the passing of the bill by the Dewan Rakyat on Nov 30, children under 18 cannot smoke (nicotine-containing vape and e-cigarettes), and (vendors are forbidden from selling smoking products including vape and e-cigarettes) to minors,” Hanir told judge Wan Ahmad Farid Wan Salleh.

Health Minister Dr Zaliha Mustafa

Among the contentions raised by the three NGOS behind the judicial review — the Malaysian Council for Tobacco Control (MCTC), the Malaysian Green Lung Association (MGLA) and Voice of the Children (VOC) — is that Zaliha’s decision would lead to the easy availability of nicotine-containing vape and e-cigarettes to children.

Hanir also said that Zaliha’s explanation in an affidavit had explained that the nicotine-delisting decision was part of government efforts related to taxation as a means to control the distribution of smoking products in Malaysia.

Not yet ratified

In response, the three NGO’s counsel Edmund Bon countered that the new bill has yet to be ratified into law by the Dewan Negara, thus there is yet no enforceable law against the sale of nicotine-containing liquids and gel products to children.

Lawyer Edmund Bon

The lawyer pointed out that when Zaliha made the nicotine-delisting decision on March 31, there was no law at the time forbidding sales of these products to minors.

At the end of proceedings, Wan Ahmad Farid set Feb 7 next year 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 to introduce a new bill to regulate smoking products and devices, including nicotine in liquids and gels used in e-cigarettes and vapes.

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

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