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AT the end of March 2023, the federal government announced that nicotine would be exempted as a controlled substance under the Malaysian Poisons Act 1952 (1952 Act).
The act, which regulates the importation, possession, manufacture, compounding, storage, transport, sale, and use of poisons had previously classified nicotine (along with all preparations of tobacco) as a Group C poison.
Liquid nicotine is a concentrated form of substance that may be contained in propylene glycol, glycerine, or other chemicals. It is often combined with flavourings when used with vape liquids.
This exemption of nicotine in the act is in line with the 2023 budget tabled on February 24, 2023 where Prime Minister Datuk Seri Anwar Ibrahim had announced that the government would impose an excise duty on liquid or gel products containing nicotine used for electronic cigarettes and vapes, with half the revenue to be allocated to the Health Ministry.
The idea behind this is the estimated RM2 billion in potential government revenue surrounding the widely used electronic cigarettes and vapes containing these liquid or gel products with nicotine, despite this being illegal.
Following this, Health Minister Dr Zaliha Mustafa has informed that liquid or gel products containing nicotine used for electronic cigarettes and vaping are now excise duty items and controlled under the Excise Act 1976, following the Excise Duties (Amendment) Order 2023.
Past meets present
Back in February 2022, the then health minister Khairy Jamaluddin had announced a “Generational Endgame” for smoking in Malaysia, whereby a new law would be introduced to effectively ban smoking, possession, and purchase of any tobacco products for the generation of youth born after the year 2006.
On June 27, 2022, the Control of Tobacco Product and Smoking Bill 2022, also known as the tobacco generational endgame law, was tabled and subsequently referred to a parliamentary special select committee for further examination and scrutiny.
In light of the latest amendments to the legislation, the traction surrounding the proposed bill was revived and the Health Ministry said it was committed to speeding up its tabling in Parliament, in light of the fact that liquid nicotine would no longer be a controlled substance under the act.
At the same time, it was also promised that the proposed bill will be tabled in the Dewan Rakyat during the parliamentary sitting in May 2023 to ensure comprehensive control over nicotine-laced products.
Currently, the sale of tobacco products in Malaysia is primarily regulated by the Control of Tobacco Product Regulations issued pursuant to section 36 of the Food Act 1983. The regulations, inter alia:
• regulate the sale and packaging of tobacco products;
• prohibit the sale of any tobacco product to minors;
• prohibit smoking in designated areas;
• prohibit advertisements of tobacco products; and
• prohibit sponsorship in exchange for the promotion of tobacco products.
Conflicting views
There have been various responses to these developments. On one hand, the vape industry sees these developments as a step forward in terms of regulation of the industry; however, many in the healthcare industry share a completely opposite view and have openly criticised the move.
In a statement made by the Malaysia Retail Electronic Cigarette Association, they were of the view that the move to exclude liquid nicotine under the Poisons Act would allow the government to introduce proper regulatory frameworks such as those from developed Commonwealth countries such as the United Kingdom, New Zealand, and Canada.
It said that the act was an unsuitable framework for the products containing nicotine, and the exemption would allow for proper regulation such as amendments of existing laws such as the 2004 regulations currently in place.
It is viewed that such regulations would be important as controls will then be in place, instead of allowing these products to remain unregulated.
Similar views have been shared by individuals from the Malaysian Vape Chambers of Commerce and the Malaysian vape industry, with it being opined that the industry would now be able to attract foreign and domestic investors with regulations introduced and enforced.
In addition, the latest move is viewed to benefit consumers as sold products, and their contents will now be controlled and safe for consumption with regulations in place, through revision of the 2004 regulations.
The 2004 regulations currently only regulate tobacco products, namely tobacco, cigarettes, cigars, snuff, and any other forms of tobacco, including any mixture containing tobacco designed for human consumption, other than controlled medicinal products under specified laws.
The coverage under the proposed bill is however significantly wider. In addition to tobacco products, the proposed bill would also regulate:
a) “Substitute tobacco products” – any product, with or without any smoking substance, intended for smoking non-tobacco products
b) “Smoking substances” – any substance or combination of substances comprising propylene glycol, glycerol, or triethylene glycol for the purpose of smoking; and
c) “Smoking devices” – any electronic device, battery-operated device, or other device used to heat, vaporise, or burn a tobacco product, substitute tobacco product, or smoking substance for smoking.
Pursuant to this, the proposed bill will allow us to update the law by regulating vaping and e-cigarettes. The wide definition of “tobacco products” and “substitute tobacco product” makes it likely that other smoking products could come within the ambit of the proposed law.
However, those involved in the healthcare industry have differing opinions. Prior to the announcement of the change in legislation, the Malaysian Pharmacists Society urged the government to reject the proposed exemption of nicotine liquid or gel from poison control regulations under the Poisons Act 1952, stating that it is not in the national interest.
They were of the view that the proposal would be detrimental to the health and safety of the Malaysian public, and that the move to exclude liquid nicotine would send the wrong message to the public.
The Malaysian Medical Association voiced similar concerns, as they believe that removing nicotine as a controlled substance under the Poisons Act will allow vapes to be legally and openly sold to children of any age, due to the loophole in the legislation.
They said that the removal of nicotine from the Poisons Act before passing the proposed bill will give children open access to vape products containing nicotine, possibly leading to a new generation of addicts.
End views
With the prevalence of e-cigarette usage among adults in Malaysia increasing over the years, and the majority of e-cigarette users in Malaysia being young adults, it is extremely important that proper legislation is established in order to regulate the industry accordingly.
According to the World Health Organisation, vaping has been linked to more than 40 deaths worldwide, with over 2,000 cases of lung injury reported in the United States. In Malaysia, there have been several cases of lung injury and deaths related to the use of e-cigarettes and vaping.
The exemption of nicotine from the list of controlled substances under the Poisons Act now allows any vape, both containing nicotine and non-nicotine, to be sold openly and legally to anyone, including children of any age.
With nicotine being a dangerous and highly addictive substance, the government must be accountable for its decision and show that it is fully committed to ensuring that the proposed bill is passed as soon as possible to ensure that our younger generation is protected.
For every second delayed, there will be the fear that no matter how much revenue is collected in taxing the industry, it will not be enough to pay for the medical costs that will subsequently follow, and treat any health issues arising from the lack of regulation of the industry. – The Vibes, April 21, 2023
Mohamed Ridza Mohamed Abdulla is the managing partner of Mohamed Ridza & Co, and Muhammad Akhlil Mohamed Ridza is an associate at Mohamed Ridza & Co.
Mohamed Ridza & Co is a Legal 500 boutique legal firm based in Kuala Lumpur
