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The High Court has ruled that the government's 2023 decision to remove liquid nicotine used in vape and e-cigarette products from the Poisons List was irrational and made without proper consultation with the Poisons Board
Delivering the judgment on Friday, 15 May, Judge Datuk Aliza Sulaiman allowed a judicial review application brought forward by three non-governmental organisations: the Malaysian Council for Tobacco Control, the Malaysian Green Lung Association, and Voice of the Children, as reported by the New Straits Times.
The court found that the decision made by then Health Minister Datuk Seri Dr Zaliha Mustafa to exempt nicotine liquids and gels was primarily driven by economic considerations
Evidence presented during the proceedings indicated that the exemption was introduced specifically to enable the government to collect excise duties on vape products as announced in the 2023 Budget.
While the revenue was intended to be channelled towards health initiatives, the judge noted that the minister proceeded with the order despite recognising that electronic cigarettes and vape liquids pose significant health risks.
A critical point of the ruling centred on the lack of meaningful consultation with the Poisons Board as required under Section 6 of the Poisons Act 1952
The judge remarked that consultation under the law must be conscious, purposeful, and effective. In this instance, there was no meeting between the minister and the board, nor were there further discussions after the board unanimously rejected the proposal to exempt nicotine from the list.
The court described the minister's actions as a form of mere formal compliance, suggesting that the decision appeared to be effectively predetermined and was essentially a "done deal".
The ruling highlighted that this exemption created a legal loophole that lasted for approximately one year and seven months before the Control of Smoking Products for Public Health Act 2024 officially came into force on 1 October last year
Although the applicants sought to have the original directive declared null and void, the court made no order as to costs, acknowledging that the legal challenge was a matter of significant public interest.
The case, originally filed in July 2023, underscores the legal necessity for the executive branch to follow rigorous consultative processes when amending regulations that directly impact national health and safety.
