K Shanmuga argued that Zaliha’s decision to remove liquid nicotine from the Poisons Act 1952 left vape products effectively unregulated and legally accessible to children for nearly 17 months, until the Control of Smoking Products for Public Health Act 2024 came into force on Oct 1, 2024.
Shanmuga was representing the Malaysian Council for Tobacco Control, the Malaysian Green Lung Association, and Voice of the Children in the judicial review proceedings against the government.
“What this meant was that vape became unregulated and effectively could be legally sold to children,” he told Justice Aliza Sulaiman.
The lawyer also objected to senior federal counsel Nurhafizza Azizan’s submission that the application had been rendered academic following the introduction of the 2024 Act, which now regulates smoking and vaping products.
Nurhafizza had submitted that Section 6 of the Poisons Act 1952 expressly empowers the minister to amend the poisons list after consultation with the poisons board, and that consultation had taken place on March 29, 2023.
In reply, Shanmuga stressed that the case remained a live issue despite the 2024 Act, as the court is being asked to determine whether the minister had erred at the material time.
He said a declaration would serve the public interest and guide future exercises of ministerial power under the Poisons Act.
He also argued that while Section 6 permitted amendments to the poisons list, consultation with the poisons board had to be meaningful and not a mere formality.
“The poisons board had conveyed its position against the removal of nicotine. Nonetheless, the minister made the order.
“You cannot meet the poisons board and proceed to make a decision without considering the board’s position,” he said.
The applicants are seeking declarations that the exemption of liquid and gel nicotine for use in electronic cigarettes and vaping devices under the Poisons (Amendment of Poisons List) Order 2023 are irrational and unlawful.
They contend that the exemption was inserted without proper or adequate consultation with the poisons board, rendering it ultra vires Section 6 of the Poisons Act 1952.
They further argue that where Section 6 allows the minister to amend the poisons list without parliamentary oversight, the provision conflicts with Article 66 of the Federal Constitution and is therefore void.
The court fixed May 15 to deliver its decision.
On Aug 14, 2023, the Kuala Lumpur High Court granted leave to the applicants to challenge the government’s move to declassify liquid and gel nicotine from the Poisons Act 1952.
The decision was delivered by Justice Wan Ahmad Farid Wan Salleh (the present chief justice) after the Attorney-General’s Chambers did not oppose the groups’ application to proceed with the judicial review.