The High Court ruled the government's decision to de-list liquid nicotine as 'irrational,' citing breach of duty to protect public health and non-compliance with national and international commitments to prevent and reduce nicotine addiction.
KUALA LUMPUR: The government’s decision to de-list liquid nicotine from the Poisons Act 1952 is “irrational”, the High Court has ruled. The court also agreed that the then- Health Minister had breached the duty to protect public health when she made the order, and had put economic benefits before the health of the public.
It said she had failed to act in accordance with Malaysia’s international commitments under the United Nations Convention on the Rights of the Child and the World Health Organisation Framework Convention on Tobacco Control to prevent and reduce nicotine addiction. Justice Aliza Sulaiman said this in her decision in allowing a judicial review filed by three non-governmental organisations against the Health Ministry and the government for de-listing nicotine liquids and gels used in e-cigarettes from the poisons list.
The order to remove liquid and gel nicotine used for e-cigarettes and vape from the Poisons List was made by then-Health Minister Datuk Seri Dr Zaliha Mustafa on March 31, 2023.
“I am satisfied that the applicants have established that the Health Minister’s decision in making the exemption was motivated primarily by economic reasons, is irrational and thus, the first issue is answered in the affirmative,” the judge said yesterday. The three NGOs – the Malaysian Council for Tobacco Control, Malaysian Green Lung Association and Voice of The Children Sdn Bhd – filed the leave application for judicial review on June 30, 2023, claiming that the minister’s decision to de-list would allow e-cigarettes and vape products with nicotine to be sold openly and legally to anyone, including children and adolescents aged below 18, without any form of regulation or control.
On Oct 14, 2023 they obtained leave from the High Court to initiate the judicial review against the Health Ministry and the Malaysian government. The groups claimed that the minister had acted illegally, irrationally and with procedural impropriety. In the decision, the court found that the main factor in the ministry’s decision was the tabling of the 2023 Budget where the Finance Minister had proposed to impose excise duties on e-cigarettes and vape liquids containing nicotine.
The Finance Minister then informed the Health Minister “to implement actions consistent with the recommendation, subject to the regulations of the Poisons Act 1952”. By legalising liquid or gel nicotine in electronic cigarettes and vapes, the government, the second respondent, may tax the products and the revenue collected will be channelled towards health initiatives by the Health Ministry, the court said.
“Hence, despite recognising that e-cigarettes and vape liquids are dangerous to health and that Malaysia is obliged to regulate and restrict their supply, sale and use, the Health Minister proceeded to make the impugned order,” Justice Aliza said. On the applicants’ claim that the ministry did not conduct proper or adequate consultation with the Poisons Board prior to the decision, the court found that the alleged “consultation” – as claimed by the respondents – was merely a formality instead of an effective consultation that would carry exchange of views and counterproposals.
The three NGOs were seeking a court declaration that the insertion of the exemption into the Poisons List was carried out without proper or adequate consultation with the Poisons Board and was therefore ultra vires Section 6 of the Poisons Act 1952 . Malaysia closely monitoring Global Sumud Flotilla near Gaza, says Anwar
De-Listing Liquid Nicotine Poisons Act 1952 Health Minister Datuk Seri Dr Zaliha Mustafa Judicial Review Economic Reasons Irrational Breach Of Duty Public Health E-Cigarettes Vape International Commitments Nicotine Control Council For Tobacco Control Malaysian Green Lung AssociaTion Voice Of The Children Sdn Bhd
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