Court ruling should not trigger vape prohibition by default

 

THE High Court’s decision on May 15 to strike down the 2023 delisting of liquid and gel nicotine from the Poisons List deserves respect. The judgment reaffirmed the importance of proper consultation and due process in public health policymaking.

However, the practical effect of the ruling could disrupt Malaysia’s legal nicotine vape market unless the government moves quickly to address the regulatory gap.

Policymakers should be careful not to allow this situation to evolve into a de facto prohibition that creates larger enforcement and public health challenges.

The debate should not be framed as a binary choice between protecting public health and allowing regulated nicotine vape products.

Since Oct 1, 2024, the Control of Smoking Products for Public Health Act 2024 (Act 852) has been in force, introducing a comprehensive framework governing vape products.

Under Act 852, vape products must be registered with the Ministry of Health, nicotine concentrations are capped at 20mg/ml, online sales and vending machine sales are prohibited, graphic health warnings are mandatory, and advertising aimed at minors is banned. Sales near schools are also restricted.

This is no longer the regulatory vacuum that public health advocates rightly criticised in 2023. The framework now exists to address concerns surrounding youth access, product standards, marketing, and enforcement.

At the same time, policymakers must also consider the position of adult smokers. The 2025 Cochrane systematic review on e-cigarettes for smoking cessation, which analysed more than 100 studies, found high-certainty evidence that nicotine e-cigarettes increase quit rates compared to traditional nicotine replacement therapies.

For the estimated 4.9 million Malaysian adults who still smoke, an abrupt prohibition risks pushing some users back towards conventional cigarettes, which remain significantly more harmful and continue to impose a major healthcare burden on the country.

A prohibition-driven environment is also unlikely to eliminate demand. Instead, it risks accelerating the growth of an illicit market where products are unregistered, untested, and sold without meaningful age controls.

Singapore, despite maintaining a strict vape prohibition since 2018, reportedly seized more than S$41 mil worth of vape products and caught nearly 18,000 people in possession of them over a recent 15-month period.

Recent concerns involving drug-laced vape products, including cases involving synthetic substances and contaminated products reported internationally, further reinforce the importance of maintaining a tightly regulated legal market with proper monitoring and enforcement mechanisms. Under prohibition, every product effectively becomes an unregulated product.

There are also broader policy implications. The government may now face questions over excise duties collected since May 2023, while future tax revenue from the sector could also be affected.

More importantly, enforcement agencies may find themselves diverting increasing resources towards combating illicit trade instead of strengthening compliance under Act 852.

The appropriate response, therefore, is not to abandon regulation, but to strengthen and operationalise it effectively.

The government should pursue clarity through the appellate process while undertaking the meaningful consultation with the Poisons Board that the High Court rightly emphasised.

Malaysia should avoid creating an enforcement vacuum where regulated products disappear but illicit demand remains.

Effective regulation, backed by strong enforcement and public health safeguards, remains a more sustainable path than prohibition by default.

Johnson Lui
Setia Alam

The views expressed are solely of the author and do not necessarily reflect those of  MMKtT.

- Focus Malaysia.