Court: liquid nicotine removal from poisons list was 'irrational'

THE High Court in Kuala Lumpur today ruled that the decision by the Health Minister and the government to exclude nicotine-containing vape liquids and gels from the list of controlled substances under the Poisons Act 1952 was irrational.

Judge Datuk Aliza Sulaiman, who is now a Court of Appeal Judge, ruled this after allowing a judicial review application filed by three non-governmental organisations (NGOs).

They were the Malaysian Council for Tobacco Control  (MCTC), the Malaysian Green Lung Association (MGLA) and the Voices of Children (VOC).

The court also declared that the exemption was made without adequate consultation with the Poisons Board and was contrary to Section 6 of the Poisons Act 1952.

In delivering the decision, Aliza said the court found that the decision to exempt nicotine in vape liquids and gels was made based on economic factors to enable the government to impose excise tax on the products.

According to her, although the government acknowledged that electronic cigarettes and vapes were harmful to health and had a responsibility to control their use, the Minister of Health and the first and second respondent governments, respectively, continued with the exemption.

“The court is satisfied that the first respondent’s decision to make the exemption was driven primarily by economic factors before the implementation of the Control of Smoking Products for Public Health Act 2024.

“Therefore, the decision is irrational,” she said during the proceedings held online.

On October 14, 2023, the High Court allowed the applicant to commence a judicial review against the Ministry of Health and the government.

The three NGOs filed a judicial review application on June 30, 2023, to quash part of the Poisons (Amendment of Poisons List) Order made on March 31, 2023.

This relates to the exclusion of nicotine in vape liquids and gels from the list of poisons, before the Control of Smoking Products for Public Health Act 2024 was passed to control the sale of smoking products, including vapes and e-cigarettes, to individuals under 18 years of age.

The ruling is seen as a significant legal challenge to the government’s approach towards regulating and taxing nicotine vape products, an issue that has drawn scrutiny from public health groups and industry players alike.

On April 1, 2023, the Health Ministry published a gazette notice stating that nicotine liquids and gels used in e-cigarettes and vape products had been granted exemption from poisons control. - May 15, 2026