The nicotine appeal: the govt got it right

 Being part of a government – in this case the health ministry – does not mean one is compelled to defend decisions by another ministry or government arm.

There are many things for which governments deserve criticism, and this Madani government has certainly received its fair share of reproof, sometimes deservedly and sometimes perhaps less so.

However, those of us who work in public health also have a responsibility to say clearly when the government has made the right decision in the wider public interest. This is particularly so when that decision may not be politically convenient and may expose the government to criticism from powerful interests.

The decision by health minister Dzulkefly Ahmad and the government to withdraw their appeal against the High Court judgment concerning the removal of liquid nicotine from the Poisons List is, in my view, one of those decisions.

The controversy began in March 2023, when liquid and gel nicotine for electronic cigarettes and vape products were exempted from the Poisons List before Malaysia had a comprehensive replacement regulatory framework in place. The High Court subsequently ruled that the exemption was irrational and made without proper and effective consultation with the Poisons Board, and failed to adequately protect public health and Malaysia’s commitments to prevent and reduce nicotine addiction.

The government initially appealed that judgment, and many people in the public health community were disappointed because it appeared that the government intended to continue defending a decision which the court had found deeply problematic.

I also came to understand, however, why an appeal would initially be considered, because governments are institutions, and when a High Court judgment has implications for ministerial powers, taxation, existing legislation and wider administrative practice, it is not unusual for the machinery of government and the Attorney-General’s Chambers to examine whether the appellate courts should consider those questions.

The government therefore exercised its legal right to appeal, but after reviewing the matter further, on Aug 18, it withdrew the appeal in its entirety and chose not to continue challenging the High Court’s findings.

To me, that decision is not evidence of weakness, nor should it be presented as the government somehow surrendering to civil society, because being part of a government – in this case, the health ministry – does not mean one is compelled to defend decisions by another ministry or government arm.

Institutions and systems mature when they are able to look again at earlier decisions, consider what the courts have said, recognise when circumstances have changed, and determine whether continuing along the same path still serves the public interest. That principle is particularly important in health policy, where evidence changes, technologies change and industries adapt quickly, while the consequences of getting decisions wrong may be borne, not by institutions but by ordinary people, years later.

This is also relevant because Dzulkefly was not the health minister who made the original decision in March 2023, and his position on tobacco, vape and nicotine control has been expressed repeatedly and publicly, alongside the official direction of the health ministry.

In fact, he has made it clear that revenue collected from vape excise duties cannot in itself justify allowing harmful products to remain on sale, while making clear that future policy should be assessed according to scientific evidence, current data and public health interests – a position entirely consistent with the central lesson of the High Court judgment that economic considerations cannot displace the responsibility to protect health.

There are legitimate questions which government still needs to answer, particularly about how the Poisons Act and Act 852 now operate alongside each other, what exactly the present regulatory position is for liquid and gel nicotine, and what enforcement agencies, healthcare professionals, retailers and the public should understand the law to require.

Those operational questions are real, but they should not obscure the larger principle, because we should want governments to be capable of course correction rather than being trapped in defending yesterday’s decisions simply because changing course might be politically interpreted as a loss.

We should also be realistic about what comes next, because decisions involving tobacco, nicotine and vape products do not take place in an economic vacuum, and the High Court judgment itself recorded evidence that the vape industry in Malaysia was valued at RM2.27 billion at the material time in 2023.

This is precisely why public support matters now, because if we believe the government should place public health before commercial expediency, we cannot remain silent when it actually makes a decision which moves in that direction and only reappear when there is something to criticise.

Those of us in civil society must remember the same principle, because our role is not simply to oppose the government, and our credibility depends on being prepared to recognise good decisions as clearly as we challenge bad ones.

We challenged the 2023 decision because we believed it was wrong, and we used the courts because that is one of the lawful mechanisms available in a functioning democracy. Now that the government has decided not to continue contesting the judgment, our responsibility is to acknowledge that decision fairly and work with the same government on what comes next, because disagreement does not need to become permanent hostility and, on this particular decision, the government has done the right thing.

On the nicotine appeal issue, the government did get this one right. So let’s laud them on it, and encourage further good decisions on issues affecting us, be it in health or the larger life scope. - FMT

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