KUALA LUMPUR: The High Court here today was told that with the passing of the Control of Smoking Products for Public Health Bill 2023 in Dewan Rakyat last week, vendors are now forbidden from selling smoking products including vape and electronic cigarettes (e-cigarettes) to minors.
Senior federal counsel (SFC) Ahmad Hanir Hambaly said with the passing of the Bill on Nov 30, children under 18 now cannot smoke (nicotine-containing vape and e-cigarettes).
“The sale and supply of poison including nicotine to children would be illegal as provided under Section 13 of the Bill.
“Anyone committing the offence is punishable with a fine not exceeding RM20,000 or imprisonment not exceeding one year,” he submitted before Judge Datuk Wan Ahmad Farid Wan Salleh.
According to Ahmad Hanir, among the provisions contained in the Bill include the prohibition of the sale and consumption of tobacco products, smoking products and tobacco substitute products to minors.
“It also witnessed the removal of the provision for the generational end-game (GEG) prohibiting the sale of tobacco products and cigarettes, as well as banning individuals born on Jan 1, 2007 onwards, from smoking,” he said.
The SFC also submitted that Health Minister Dr Zaliha Mustafa did not overreach her powers when she decided to remove nicotine from the list of controlled substances under the Poisons Act 1952.
He said this was because the exemption was made pursuant to Section 6 of the Poison Act which allows the minister to amend the Poison List.
“By making the exemption, nicotine used for smoking through e-cigarettes and electric vaporising devices in the form of liquid or gel is an exempted preparation and therefore does not fall within the meaning of ‘poison’.
“Therefore, I submit that the application should be dismissed by this court because the first respondent’s decision (Dr Zaliha) is made in accordance with the law and is not tainted with irrationality,” he added.
On Oct 14, the Malaysian Council for Tobacco Control (MCTC), the Malaysian Green Lung Association (MGLA) and Voice of the Children (VOC) as applicants obtained leave from the court to initiate a judicial review against the Health Ministry and the Malaysian Government as respondents.
The three NGOs filed a judicial review application on June 30, to quash that part of the Poisons (Amendment of Poison List) Order made by the first respondent on March 31 and seeking a declaration that the impugned order is void.
Meanwhile, counsel Edmund Bon representing the three NGOs submitted that the new bill has yet to be ratified into law by the Dewan Negara, thus there is yet no enforceable law against the sale of nicotine-containing liquids and gel products to children.
He said when Dr Zaliha made the nicotine-delisting decision on March 31, there was no law at the time forbidding sales of these products to minors.
Judge Wan Ahmad Farid fixed Feb 7 next year for the decision. – Bernama
