Court Allows NGOs' Challenge Over Vape Liquids And Gels Exemption Decision

KUALA LUMPUR, May 15 (Bernama) -- The High Court here today allowed a judicial review application filed by three non-governmental organisations (NGOs) challenging the government's 2023 decision to exempt vape liquids and gels from the Poisons List.

The three NGOs are the Malaysian Council for Tobacco Control, Malaysian Green Lung Association, and Voice of the Children.

Judge Datuk Aliza Sulaiman ruled that the applicants had successfully proved the government's decision to grant the exemption was irrational, had been driven primarily by economic reasons and was made before the Control of Smoking Products for Public Health Act 2024 (Act 852) came into force on Oct 1, 2024.

The three applicants filed their judicial review application on June 30, 2023. They sought a declaration that the Poisons (Amendment of Poisons List) Order 2023, specifically the clause dated March 31, 2023, which excluded vape liquids and gels from the Poisons List, was an irrational exercise of power.

They also sought a declaration that the exemption had been introduced without proper and adequate consultation with the Poisons Board, rendering the decision ultra vires Section 6 of the Poisons Act 1952.

On the issue of consultation with the Poisons Board, Justice Aliza noted that the respondents, the then Health Minister and the government, argued that the Poisons Board Act (Act 366) does not specify the required method of consultation.

Therefore, they contended that the word "consultation" should be interpreted in the context of the board's functions as set out in Section 3 of the Act.

However, the judge ruled that, in her view, consultation with the Poisons Board under Section 6 of the Act is not only mandatory, but must also, as submitted by the applicants, be conscious, meaningful, purposeful and effective.

In this case, she said there was no physical meeting between the then Health Minister (the first respondent) and the Poisons Board.

“The alleged consultation here was merely formal compliance with Act 366, whereas effective consultation necessitates an exchange of views and consideration of counterproposals.

“If I may put it rather crudely, it was almost like a done deal,” she said.

No order as to costs was made after the applicants’ lawyer, K. Shanmuga, informed the court that they were not seeking costs as the matter involved public interest litigation. 

Senior federal counsel Nurhafizza Azizan appeared for the two respondents.

-- BERNAMA