The nicotine court ruling: what it means and why it matters

 The concern was not simply that nicotine had moved from one regulatory category to another, but that an existing layer of protection was being removed before the comprehensive system intended to replace it had come into operation.

I had been unusually quiet over the last three years about the controversy surrounding the removal of liquid nicotine from the Poisons List. This was not because I did not have views on what happened, but because I was directly involved in what eventually became the legal challenge to that decision.

As chairman of the Malaysian Council for Tobacco Control, or MCTC, an organisation which brought the judicial review together with Green Lung Malaysia and Voice of the Children, I felt that once we had taken the legal route, the arguments needed to be made properly before the court rather than continuously litigated through press statements and public exchanges.

With the High Court having delivered its decision, the full grounds of judgment now being made available, and the government subsequently withdrawing its appeal, there is finally room to explain what we were actually challenging and why the judgment matters beyond the argument over whether one is “for” or “against” vaping.

This controversy actually began in March 2023, when the liquid or gel nicotine used in electronic cigarettes and vaping devices was exempted from the Poisons List, removing these preparations from the controls which previously applied under the Poisons Act.

For many of us working in tobacco control, the concern was not simply that nicotine had moved from one regulatory category to another, because laws do change and regulatory systems need to evolve. The concern was that an existing layer of protection was being removed before the comprehensive system intended to replace it came into operation.

At the time, Act 852, the Control of Smoking Products for Public Health Act, had not even been tabled, let alone implemented, and we were seriously concerned about a “lacuna” or loophole that would arise: namely children could freely buy nicotine-containing products in electronic cigarettes and vaping products (subsequent history proved us even more right, especially since the Act, after being passed, could only come into force on Oct 1, 2024).

In a key aspect of the judgment, the High Court found that this was indeed true. The decision to remove nicotine from the Poisons Act before Act 852 was tabled caused a problem, since before its implementation there was no comprehensive law governing nicotine-containing vape products.

Our request for judicial review was therefore never an academic argument about where nicotine ought to sit in our statute books, but a practical question about what happens when an addictive substance, delivered through products increasingly accessible to young people, is removed from one system of control while the next system is still waiting to begin.

Long before court action was conceived, we repeatedly communicated these concerns to stakeholders, including senior management within the health ministry. The legal challenge was a final recourse after the available avenues for meaningful engagement were exhausted.

The second important aspect of the judgment concerned the role of the Poisons Board itself. Under the Poisons Act, the health minister is required to consult the board before amending the Poisons List.

The board met on March 29, 2023 and unanimously rejected the proposed exemption, with that position communicated to the minister.

However, the decision to proceed was made the following day and the exemption order was signed on March 31.

A minister does not have to agree with every expert committee, but consultation has to mean that the advice being sought is genuinely capable of influencing the decision.

The High Court found that this had not happened, holding that consultation must be conscious, meaningful, purposeful and effective rather than simply fulfilling the formality of having consulted and describing the circumstances surrounding the exemption as, effectively, a “done deal”.

That finding matters well beyond the issue surrounding nicotine because the government relies on advisory boards, professional councils and technical panels precisely because many policy decisions are complex. If we create these structures because expertise matters, then the process of listening to that expertise must matter, too.

A third aspect of the judgment dealt with taxation. The evidence before the court showed that the exemption was closely linked to the government’s decision under Budget 2023 to impose excise duty on nicotine-containing vape liquids. The court found that economic considerations involving taxation and revenue collection were a primary motivation for the decision.

Our stand has always been not an objection to taxation itself, but rather the underpinning philosophy that fiscal policy cannot determine the sequence of public-health protection, particularly if an existing control needs to disappear first while the replacement framework is not yet in operation.

The High Court also found that the minister failed to act in accordance with Malaysia’s commitments under the WHO Framework Convention on Tobacco Control and the Convention on the Rights of the Child, which is why this judgment matters – not because it settles every future argument about nicotine, but because it clarifies how public health decisions should be made, how expert advice should be treated, and how health must remain central when addictive products are being regulated.

Given this period of Merdeka and togetherness, this is a point that cannot be more highly stressed. Somewhere amid these arguments about law, taxation and regulatory structures are the people whom these policies are supposed to protect, particularly children and young people.

Malaysians should reasonably be able to assume that when the government makes decisions involving addictive substances, protection from addiction remains one of the foremost considerations. We fought to defend that, and by working through the very institutions meant to protect the public, we managed to course-correct – not by rejecting the system, but by insisting that it remain faithful to its first duty: protecting Malaysians from preventable harm. - FMT

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