NGOs file legal challenge to quash Health Ministry's reclassification of nicotine

KUALA LUMPUR: Three non-governmental organisations (NGOs) have filed a legal challenge over the Health Ministry's decision to remove nicotine from the list of controlled substances under the Poisons Act 1952.

The Malaysian Council for Tobacco Control, Malaysian Green Lung Association and Voice of The Children Sdn Bhd filed the leave for judicial review application through Kanesalingam & Co at the High Court on June 30.

They named the Health Minister and the government as the first and second respondents respectively.

In the suit, the groups claimed that on March 31, the Health Minister made the amendment on the Poisons (Amendment of Poisons List) Order 2023 purportedly with the consultation of the Poisons Board.

It said that the new law made exemptions on the classification of nicotine.

"It is contended that the Poisons Board unanimously voted against the impugned exemption on medical and health grounds. Nonetheless, the minister did not properly consider and engage the Poisons Board's decision but proceeded to make the impugned order," the groups said.

They claimed that the ministry's decision would allow electronic 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, as there is currently no regulation or legislation regulating electronic cigarettes and vape products with nicotine.

The groups claimed that the minister had acted illegally, irrationally and with procedural impropriety.

"Her actions were also disproportionate because the minister who was under a duty to protect public health had in fact failed in that duty and instead prioritised revenue collection.

"In reality, the minister's actions harm public health, particularly children who are the most vulnerable in society," they said.

They further claimed that the power to make such an order under Section 6 of the Poisons Act, was unconstitutional and ultra vires to the legislative power of the Parliament as enshrined in Article 66 of the Federal Constitution.

The applicants are seeking a certiorari order to quash the amendment on the law provision made on March 31.

Alternatively, they are seeking a court declaration that the impugned exemption for nicotine is void as well as other reliefs considered just by the court.

They also sought a stay of proceedings on the impugned order pending the disposal of the substantive hearing of the judicial review application.

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