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Sunday, 17 January 2016

A hot, hazy mess

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Right of way: Even if a state allows vaping, the Health Ministry can still conduct raids as it is empowered to confiscate products categorised as medicine, poisons or drugs.

Right of way: Even if a state allows vaping, the Health Ministry can still conduct raids as it is empowered to confiscate products categorised as medicine, poisons or drugs.

As the health debate rages on, Sunday Star speaks to experts and stakeholders about regulating the e-cig and vape industry.

MALACCA has banned both the sale and use of vape, or e-cigarettes, while states like Johor, Kelantan, Negri Sembilan, Terengganu and Pahang have either banned their sale or are mulling over prohibiting it for Muslims. Others are silent on the issue while waiting for federal regulations.

In June last year, Sunday Star highlighted Malaysia’s booming half-a-billion-ringgit vape industry. The Cabinet has since decided against a ban while the National Fatwa Council issued an edict prohibiting Muslims from vaping.

As traders look to the courts for redress amidst the hazy controversy, there’s an urgent need for a new law. Existing regulations involve too many ministries and don’t adequately address the complexities of this innovation.

There’s a lot of confusion because vaping is new, civil liberties lawyer Syahredzan Johan says, drawing a comparison with the Uber situation here. While there are regulations, they don’t cater specifically to the situation, he notes.

When vaping gained traction, the Health Ministry was the first to react, reminding traders that liquid nicotine is a controlled item that can only be sold by licensed persons.

Commenting in his personal capacity, the Bar Council member and National Young Lawyers Committee co-chairperson recalls how Johor’s Sultan Ibrahim Ibni Almarhum Sultan Iskandar’s call for e-cigs to be banned from Jan 1 signalled the start of “vaping bans” in other states.

Chairperson of the National Young Lawyers Committee and Co-Deputy Chairperson of the Constitutional Law Committee, Shahredzan Johan.- M. Azhar Arif/The Star 08 Oct 2014
Local councils can impose conditions and prohibitions – like dosallowing the sale of e-cigs in unlicensed retail premises. If the businesses fail to comply with the bylaw, they can be shut down. - Syahredzan Johan

Referring to the separation of powers among the three arms of the Government – the executive, the legislature and the judiciary – Syahredzan says banning the sale of e-cigs falls purely within the executive’s jurisdiction.

“When His Royal Highness said a ban should be imposed, the state exco took heed. Now other state governments look to be doing the same.”

He, however, says many are confused over the term “vaping ban”. In Johor, the act of vaping, he says, remains legal as it’s only the selling of e-cigs that is illegal. Such a ban would be implemented in the respective states through local council by-laws.

“Local councils can impose conditions and prohibitions – like disallowing the sale of e-cigs on retail premises. If the businesses fail to comply with the by-law, they can be shut down.

“However, under federal law, only the Health Ministry is empowered to confiscate products categorised as medicine, poisons or drugs. So even if a state allows vaping, the ministry can still conduct raids.”

The ban, he clarifies, only applies to retail premises. The state cannot raid homes and stop people from vaping. Buying e-cigs online is not illegal. So vape bans impact businesses, not the individual.

And although the National Fatwa Council has declared vaping to be haram, it’s purely advisory. Islamic law falls under state jurisdiction. It’ll only be binding on Muslims in the different states if each State Fatwa Council comes up with a similar edict and gazettes it, he feels. Non-Muslims won’t be affected, he assures, unless the religious edict is enforced through local council by-laws.

He foresees more traders seeking legal redress in the coming months. Licensed traders can argue that the ban is unfair and unreasonable if it is imposed retrospectively. They can seek judicial review on the ban by claiming that their livelihood is affected and they weren’t given enough time to clear their stock. And if a state bans the use of e-cigs, it can also be challenged because this falls under the Federal Government’s purview.

“A vaper’s right will only be infringed if the Federal Government bans both the sale and use of e-cigs. In such a case, a class action may be possible.”

Urging the Government to come up with a detailed health study and new laws for the industry, he cites an example of a loophole in the law – people are vaping in no smoking zones because e-cigs are not classified as a tobacco product under federal legislation.

“We must decide what needs to be regulated. There are so many areas – selling, distributing and vaping. These all come under different ministries. The Government, together with stakeholders, must look at this comprehensively.”

There are three ways of regulating e-cigs, Universiti Malaya associate professor, consultant psychiatrist, and nicotine addiction specialist Dr Amer Siddiq Amer Nordin explains. The device and liquids can either be regulated as a consumer, tobacco or medicinal product, he says.

But treating it like a consumer product would mean that e-cigs are no different from a toaster, in terms of the law, he argues.

“Most of the liquids contain nicotine. Selling it freely like mineral water will create a new generation of addicts.”

On the other hand, if vapers are hailing it as an effective smoking cessation tool, regulating it as a tobacco item would be a contradiction that makes no sense, he feels.

“So the only option left is to regulate it as a medicinal device. E-cigs can be used for treatment such as in nicotine replacement therapy but there must be stringent regulations. Any use of nicotine must be monitored and recorded.

“If we cannot regulate it well, the only responsible option left is a ban,” he says.

Imperial College London Emeritus Prof Gerry Stimson, who sits on the British Standards Institution group on e-cigarette standards, feels that e-cigs can help bring an end to smoking, but only if governments get the regulation right and do not over-react to unfounded fears and scaremongering.

There’s no reason to regulate them as tobacco products, poisons or medicines, he says in an e-mail interview. Nicotine isn’t tobacco. To regulate it the same way that tobacco is regulated sends the incorrect message to consumers that the dangers of e-cigs are similar to tobacco cigarettes, he insists. “Tobacco control” is the wrong framework because it seeks to limit and prohibit use, whereas e-cigs can help end the smoking habit.

“They’re not medicines either. The application of medicines regulation is a highly expensive, lengthy and burdensome regime that perversely has the effect of providing a regulatory protection to the cigarette trade.

“It’s illogical to regulate e-cigs more strictly than cigarettes. E-cig users aren’t medicating themselves but using a safer alternative to tobacco,” he says, adding that medicine regulation is anti-innovation.

Few companies, he points out, can afford the costs of medical regulation. Medical regulation will favour tobacco companies entering the e-cig market as they can afford such hefty costs. He dismisses regulating e-cigs or e-liquids as poisons, as the nicotine concentrations used aren’t a significant hazard and can’t be addressed with the same approach as any other chemical present in the home, such as household cleaning products.

The direction, he feels, should be to allow the sale of nicotine and e-cigs as a viable alternative to tobacco cigarettes. The aim, he suggests, is to assure consumers of safety and quality without introducing costly or cumbersome limits on manufacturing.

“Excessive regulation will reduce innovation, deny consumers choice, and make access to e-cigs significantly harder than access to cigarettes. E-cigs need a separate, proportionate regulatory framework. Regulate e-cigs as consumer products.”

A sound regulatory regime for e-cigs, he offers, would include:

> Product standards for liquids and devices, true and fair information about ingredients and sell-by date, warnings and consumer messages, child-resistant liquid containers and stewardship requirements like person responsible and means to recall.

> Allowing advertising that prevents glamorisation and marketing to youth but that is balanced with commercial freedom to compete with the cigarette trade.

> Allowing flavours.

> Controls on marketing and retailing to target adult smokers.

> Permitting vaping in public places. Let the premises decide if they want to disallow it.

Ray Story, CEO of the Tobacco Vapour Electronic Cigarette Association, feels Malaysia must first decide how to categorise the product. That product definition can then be used to regulate it according to the legal framework.

Identify whether these are federal laws that apply to all states or laws that are implemented on a local level, he says. If tobacco is regulated under federal law in Malaysia, it would be applicable in all states, he says. For example, in the United States and Europe, nicotine, drugs and alcohol are regulated on a federal level, meaning that the law applies in all 28 EU countries and all 50 states in the United States.

On whether Malaysia should look to the incoming EU Tobacco Products Directive to legislate the industry here, UM’s Dr Amer says we should have a set of rules that are specific and unique to our needs. Why should we adopt any foreign law lock, stock and barrel? Why should foreigners tell us what to do? he asks. Whatever regulation we draw up must be for health, not wealth, he stresses.

Related stories:

It’s a global challenge

Waiting for the law

Tags / Keywords: Courts Crime , vape , e cig , legislate , ban

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