Health groups go to court to reinstate nicotine in Poisons Act

Three NGOs on health and children’s rights have gone to court to quash Health Minister Dr Zaliha Mustafa’s decision to remove nicotine from the list of controlled substances under the Poisons Act 1952.

Malaysian Council for Tobacco Control (MCTC), the Malaysian Green Lung Association (MGLA) and Voice of the Children (VOC) filed the judicial review leave application at the High Court in Kuala Lumpur on Friday last week.

On March 31, the Health Ministry exempted nicotine from the list of controlled substances under the Poisons Act with the aim of introducing 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 in the public legally, and with no control to prohibit the sale of these items to minors.

According to a copy of the legal action that targeted the health minister (who is not named) and the federal government as first and second respondents, the three NGOs seek a court order to nullify Zaliha’s decision on March 31 to amend the Poisons Act.

The three applicants contended that the minister did not properly consider and engage with the Poisons Board over its unanimous vote against the nicotine exemption.

Health Minister Dr Zaliha Mustafa

The trio claimed the exemption allows electronic cigarettes and vape products with nicotine to be sold openly and legally to anyone, including children aged below 18 years old, without any form of regulation or control as there is none at present.

“This was also done despite overwhelming evidence of the dangers posed by electronic smoking devices and vape liquids, and the increased likelihood of vapes leading to nicotine addiction on the part of children,” the groups said.

The applicants pointed out that the exemption, coupled with the current lack of legislation or regulation on electronic cigarettes and vape, legally permits any level of nicotine content in these products.

‘Minister’s act harms public health’

“... the minister acted illegally, irrationally, with procedural impropriety. Her actions were also disproportionate because the minister who was under a duty to protect public health had in fact failed in that duty and instead prioritised revenue collection.

“In reality, the minister’s actions harm public health, particularly children who are the most vulnerable in society,” the applicants claimed.

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

This contravened the ministry’s own stated policy objectives of prohibiting tobacco products for children, as well as for people born from Jan 1, 2007 (per the Generational End Game bill, which aims to ban smoking to anyone born from 2007 onwards).

“The impugned exemption ignored the prevailing research on nicotine addiction and the harm it causes, the uncertainty about how much worse nicotine through electronic products is.

“Overwhelming research shows that children and young persons are particularly attracted to and likely to become addicted to nicotine through vapes or electronic cigarettes,” the groups claimed.

The NGOs also pointed out the exemption is contrary to Malaysia’s international commitments to develop policies to prevent and reduce nicotine addiction and exposure to tobacco smoke, such as the World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC) - which the country signed in 2003 and became a party to in 2005.

The applicants noted that Malaysia is also party to the United Nations (UN) Convention on the Rights of the Child (CRC) since 1995, with Article 3 of the CRC stating that the best interests of the child shall be a primary consideration in decisions involving children.

The NGOs pointed out that Article 24 of CRC lays out that Malaysia shall recognise the right of children to the enjoyment of the highest attainable standard of health.

“In the circumstances, the impugned exemption was made without due regard to the rights of the child, and was made contrary to the best interests of children,” the groups contended.

The groups also claimed that the exemption order, which was made with the power given by Section 6 of the Poisons Act, is unconstitutional for being an excessive delegation of power that violated Parliament’s exclusive power to make laws per Article 66 of the Federal Constitution.

The three applicants are represented by counsel from Kanesalingam & Co.

Malaysiakini is attempting to reach out to the Attorney-General’s Chambers over the matter.

When contacted by Malaysiakini, MCTC chairperson Dr Murallitharan Munisamy said the groups would hold a press conference tomorrow over the matter. - Mkini