Court rules govt's delisting of liquid, gel nicotine products unlawful, irrational

 

The government, through the Health Ministry, had acted illegally, irrationally, and without proper consultation with the Poisons Board when it delisted liquid and gel nicotine products from the Poisons List in 2023, the Kuala Lumpur High Court ruled today.

As such, judge Aliza Sulaiman allowed a judicial review filed by three NGOs against the then health minister Dr Zaliha Mustafa and the government, who were the first and second respondents.

The NGOs were Voice of Children (VoC), the Malaysian Council for Tobacco Control (MTCT), and the Malaysian Green Lung Association, which filed the legal challenge in July 2023.

Aliza, who delivered her decision in online proceedings, said the matter remains a live issue and was not rendered academic as the delisting has not been repealed despite the enactment of the Control of Smoking Products for Public Health Act 2024.

She found that Zaliha’s decision to delist the products used in vape and e-cigarettes was primarily driven by economic considerations linked to the imposition of tax on vape products in Budget 2023.

Zaliha’s affidavit, she said, is evidence that the tax exemption was introduced to enable the government to tax vape products, which contain nicotine, with the resulting revenue to be channelled to health initiatives.

“Despite recognising that electronic cigarettes and vape liquids are dangerous to health and that Malaysia is obliged to regulate and restrict their supply, sale, and use, the first respondent (Zaliha) proceeded to make the impugned order to give effect to the decision regarding taxation,” said Aliza.

Loophole

The court further found that the tax exemption had created a legal loophole before the Control of Smoking Products for Public Health Act 2024 came into effect in October 2024.

She also said that the Health Ministry’s consultation with the Poisons Board regarding the delisting decision did not meet the requirements under Section 6 of the Poisons Act.

This is because, she said, there was no physical meeting between Zaliha and the board, and there was no further discussion after the board unanimously rejected the delisting proposal.

The consultation, she added, was merely a formal legal compliance as the outcome was effectively predetermined.

“If I can put it rather crudely, it was almost like a done deal,” she said, making no order as to costs.

The NGOs contended in their legal challenge that Zaliha did not properly consider and engage with the Poisons Board over its unanimous vote against the nicotine exemption.

The groups claimed the minister’s actions are irrational, as the exemption would lead to electronic cigarettes and vapes with nicotine being freely sold to children.

Former health minister Dr Zaliha Mustafa

The Health Ministry, on March 31, 2023, 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.

Subsequently, Zaliha, on April 1, assured that vape liquids and related products would be regulated under the Control of Smoking Products for Public Health Act 2024. - Mkini