APRIL 7 — The Poisons Act 1952 lists nicotine as a Scheduled Poison and prohibits anyone other than a licenced person from selling, by wholesale or retail, such items. From 1 April 2023, nicotine preparation of a kind used for smoking through electronic cigarette and electric vaporising device, in the form of liquid or gel” have been exempted from the restrictions in the Poisons Act 1952. This exemption opened the path to the "legalisation” of sale of vape liquids containing nicotine at retail.

From 1 April 2023, the Excise Duties (Amendment) Order 2023 imposes a rate of 40 cents per millilitre of vape liquid. This step is called "excise taxation”. This is much lower than the RM1.20/ml announced by the previous Minister of Finance during Budget 2022.

There is a missing ingredient from the design of the regulatory framework. In order to complete the framework, the Minister of Health must urgently promulgate a set of regulations on vaping devices, vape liquids containing nicotine and the vape industry to protect consumers by controlling prohibited devices and ingredients, and more importantly to ensure responsible behaviour by the vape industry.

In developed jurisdictions such as the UK and Europe, vape products and vaping are subject to similar laws that apply to cigarettes, with some specific differences. In Malaysia, smoking as well as vaping in public places are already regulated and prohibited by the Control of Tobacco Product Regulations 2004 (CTPR). The existing CTPR is a law made by the Minister of Health under ministerial powers granted under the Food Act 1983; without the need to go to Parliament, that prohibits Tobacco Product Advertisement and Sponsorship etc., prohibits free samples, gifts, prizes, prohibits sale to U-18/minors, sets a minimum price of RM12/packet of cigarette, prohibits internet/online sales, prohibits sales though vending machines, mandate pictorial health warnings on packets, and require an MOH approval before any tobacco product can be sold in Malaysia.

There is no similar set of regulations that apply to vape products and vape industry. It is a free for all as stated by the former minister of health Khairy Jamaluddin.

Various tobacco control NGOs have come out to urge the Government to re-table the Control of Tobacco and Smoking Bill 2022 (DR 29/2022), incorporating the recommendations of the Report of the Special Select Committee on the Control of Tobacco And Smoking Bill 2022, to put in place the necessary regulations on vape products and vape industry.

However, there is a glaring loophole in the proposed draft. In developed jurisdictions such as the United Kingdom, the Tobacco and Related Products Regulations 2016 contain provisions that restricts vape liquid tanks to a capacity of no more than 2ml, restricts the maximum volume of nicotine-containing vape liquid for sale in one refill container to 10ml, restricts vape liquid to a nicotine strength of no more than 20mg/ml, requires nicotine-containing products or their packaging to be child-resistant and tamper evident, bans certain ingredients including colourings, caffeine and taurine, and includes new labelling requirements and warnings. All of these are missing in the Control of Tobacco and Smoking Bill 2022 (DR 29/2022) and if the same Bill is re-tabled, there will be a massive lacunae in the regulatory framework.

Of chief concern is the dangers of certain ingredients. The UK Tobacco and Related Products Regulations 2016 prohibit vitamins or other additives that create the impression that a tobacco product has a health benefit or presents reduced health risks, caffeine or taurine or other additives and stimulant compounds that are associated with energy and vitality, additives having colouring properties for emissions – that creates coloured smoke, additives that have carcinogenic, mutagenic and reprotoxic (CMR) properties in unburnt form, and additives in quantities that increase, to a significant or measurable degree, the toxic or addictive effect or CMR properties of the product when it is consumed.

Popcorn Lung (bronchiolitis obliterans) is caused by a build-up of scar tissue in the lungs, which blocks the flow of air. There is a possible link has been suggested between the disease and a chemical called diacetyl. Some of the liquids in e-cigarettes used to contain diacetyl to give a "buttery” flavour. In the UK, diacetyl was banned in vape liquids under the EU Tobacco Products Directive (TPD) in 2016. So, vape liquids sold in the UK shouldn’t contain diacetyl. But without an "ingredients regulations”, the same chemical can be freely used in vaping liquids in Malaysia.

The Minister of Health have adequate powers under the Control of Tobacco Product Regulations 2004 and the Food Act 1983 to regulate vape products and the vape industry. This will be the fastest way to have a set of regulations on vaping products and vape industry.

The call for the Government to re-table the Control of Tobacco and Smoking Bill 2022 (DR 29/2022) in its current form, even incorporating the recommendations of the Report of the Special Select Committee will lead to an incomplete Act of Parliament that will require the Minister of Health to promulgate another set of regulations which will in turn leave vape consumers at risk for a longer period.

I suspect that the pressure to re-table the Control of Tobacco and Smoking Bill 2022 (DR 29/2022) stems from the support for the proposed Generation End Game. However, the opposition to the controversial GEG proposal; which have been condemned by a former Chief Justice as unconstitutional, will lead to a longer public debate and will lead to a delay in the urgently needed vape regulations.

The urgent need is a set of regulations to govern vape products and vape industry, not GEG. There is a need to de-couple GEG from the debate on vape regulations. There is no reason to cause a delay in vape regulations, waiting for GEG to be accepted and passed by Parliament.

It is therefore suggested for the Minister of Health to exercise her powers under the Control of Tobacco Product Regulations 2004 and the Food Act 1983 to regulate vape products and the vape industry urgently and start protecting vape consumer.

*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.