PETALING JAYA: Former health minister Datuk Dr Zaliha Mustafa has defended her controversial 2023 decision to delist liquid nicotine from the Poisons Act 1952, describing it as a "critical step" to pull a multi-billion ringgit vape industry out of the black market.
Responding to a recent High Court ruling that quashed her exemption order, Dr Zaliha said the move was a necessary policy decision based on the reality of the industry landscape at the time.
"Before March 2023, enforcement under the Poisons Act 1952 was no longer able to contain the flooding of vape products in the market. Despite being a controlled poison, nicotine vapes were being sold openly in the black market," she said in a statement.
Dr Zaliha said the decision had to be viewed in a larger context, as the government could not allow a massive industry to operate without records, registration, and monitoring.
"The exemption was a critical step to pull the industry out of the black market so it could be declared, its supply chain monitored, and taxed. This matter was also discussed in detail by the Cabinet at the time," she said.
To plug the resulting legal loophole, Dr Zaliha said that she tabled the Control of Smoking Products for Public Health Bill in June 2023.
The standalone law, now officially enforced as Act 852, comprehensively regulates smoking products, vape devices, and nicotine liquids, while strictly prohibiting sales to minors.
"With Act 852 fully operational, the legal loophole has been filled. Therefore, government lawyers correctly argued in court that this judicial review has largely become academic and no longer has a practical effect on the current public health ecosystem.
"Malaysia now has a tobacco and vape control ecosystem that is much safer, comprehensive, and protects the younger generation, compared to when we only relied on the outdated provisions of the Poisons Act," she added.
Despite defending her policy, Dr Zaliha said she respected the High Court's decision and appreciated the health non-governmental organisations (NGOs) that brought the case forward.
Calling the legal challenge proof of a healthy democratic system of checks and balances, she said that both the government and NGOs share the ultimate goal of protecting the health of Malaysians.
Dr Zaliha also noted that the Health Ministry will be appealing the High Court's decision at the Court of Appeal, adding that it is too early to draw conclusions on the issue.
"This appeal process is important to correct the legal interpretation regarding the executive power of a Minister in making policy decisions for the strategic interest of the country.
"The decision taken in 2023 was a bold step that ultimately succeeded in safeguarding the people under Act 852, which is currently in force," she said.
On May 15, the High court ruled that the government’s decision in 2023 to de-list liquid nicotine from the Poisons Act 1952 was “irrational”.
Justice Aliza Sulaiman said this in her decision allowing a judicial review filed by three non-governmental organisations (NGO) against the Health Ministry and the government for de-listing nicotine liquids and gels used in e-cigarettes from the poisons list.
