Commentary: Malaysians losing battle on vaping after shock legalisation move

KUALA LUMPUR: In a shock move, Malaysia effectively legalised vaping from Apr 1, after the government exempted nicotine liquids and gels as a controlled substance under the Poisons Act 1952, allowing them to be sold on the open market and taxed.

The intention to impose such an excise duty had already been announced in October 2021 by the administration under Ismail Sabri Yaakob, and again by Prime Minister Anwar Ibrahim when he tabled the 2023 budget in February, three months after the Pakatan Harapan coalition-led unity government won the 15th general election.

What was shocking was that this exemption happened before an anticipated law to govern the limit and sale of vape products was tabled and that Health Minister Dr Zaliha Mustafa had overruled the Poisons Board’s decision to keep nicotine liquids and gel on the poisons list.

There is now a legal loophole where the government cannot control their sale to and consumption by youths and children. As it is, a 2016 Ministry of Health Malaysia survey indicated that 14.2 per cent of adolescents between ages 10 and 19 were smokers, while 9.1 per cent used then-illegal vape products.

On Apr 4, Anwar assured the parliament that the Control of Tobacco Products and Smoking Bill 2022 would be tabled in parliament in May. The Bill aims to prohibit the sale and use of smoking products to individuals born from 2007, also known as the “generational endgame”.

Calling a complete ban too drastic, Anwar said that taxing vape products to prevent them from being “widespread and cheap” while prohibiting their use in parliament and schools are “enough to prevent people, especially young people, from vaping or smoking”.

CHANNELLING VAPE TAX TO HEALTHCARE?

The thinking seems to be that some of the tax revenue - at a rate of RM0.40 (US$0.091) per millilitre on vape liquids or gel with nicotine content - can be channelled to the Health Ministry. But it is far from enough to cover the cost of treating smoking-related diseases.

In July last year, then-health minister Khairy Jamaluddin said it would cost the government RM8.8 billion by 2030 to treat three major smoking-related diseases - lung cancer, heart disease and chronic obstructive pulmonary disease. This is almost three times the estimated RM3 billion in tax collected from the sale of tobacco products.

Universiti Putra Malaysia health economist Dr Wency Bui told me that based on her calculations, the government could collect RM500 million from 1.59 million vapers (based on the 2019 National Health and Morbidity Survey).

That is if all the vapers are heavy smokers who smoked 15ml of nicotine liquid a week. But not all vapers use nicotine liquids and the amount collected is likely less than the figure, she said, calling the tax rate low.

A heavy smoker spends up to RM17.50 for a packet of 20 cigarettes a day. Comparatively, it cost RM30 to RM50 for nicotine vape liquid for a week or two. “It is far cheaper to vape than to smoke and this attracts smokers to take up vaping and continue with their smoking habit,” Dr Bui said.

If the tax imposed really hurts smokers’ wallets, it may possibly minimise smoking habits. But in this case, vaping is a continuation of nicotine addiction, rather than cessation. It is also a cheaper gateway to nicotine addiction to new smokers.

CHALLENGES IN ENFORCEMENT

But now, the exemption might have put the cart before the horse. By the time the tobacco Bill is passed, there may be many more young smokers who have tried vaping legally and potentially started an addiction.

Enforcing restrictions on vaping liquid will likely come with a host of challenges. For one, only nicotine liquids and gel are taxed and not non-nicotine ones, and the contents of vape products cannot be identified on the spot.

“This poses a challenge to enforcement officers who will have to send the liquids to the laboratory to identify the contents,” Malaysian Green Lung Association president Ho Rhu Yann told me. “Even when it was still regulated under the Poisons Act, the enforcers were quite lackadaisical despite knowing some of these vapes contain nicotine.”

Potentially, some unscrupulous retailers may also deliberately label them as without nicotine to evade tax, Ho said, while he is unsure how the Malaysian Customs Department will enforce this and what the penalties will be for the offence.

A teacher previously told me that some vaping products look like a pen and can be hidden in students’ pockets, making monitoring difficult.

HEALTHCARE CONCERNS ABOUT NICOTINE AND E-LIQUID CHEMICALS

Many in the medical fraternity are understandably unhappy, including a former deputy health director-general and anti-tobacco activists who have spoken out strongly against the move in the press and social media.

The legalisation of vaping and nicotine products can potentially tear down decades of work targeted at ending smoking and the related preventable health problems and deaths. Khairy had previously also said that vaping could lead to e-cigarette or vaping use-associated lung injury (EVALI) and such a patient will have to spend more than RM150,000 for 12 days of treatment in hospital.

Concerned doctors have also urged the government to ban vaping because the long-term effects of many chemicals in the e-liquid are still unknown.

Those in the tobacco industry and some policymakers have also questioned why nicotine is allowed in cigarettes but not in e-cigarettes. In a Facebook post on Apr 2, Dr Lokman Hakim Sulaiman, a professor of public health, pointed out that the impact of poisoning from liquid nicotine is higher than nicotine from tobacco - the reason why it should remain on the poisons list.

“The nicotine in cigarettes existed naturally in tobacco leaves and the level is controlled under the Control of Tobacco Product Regulations,” said Lokman, who is based in a private medical university in Kuala Lumpur. “But vape is not tobacco, so the tobacco regulations cannot be applied to vape.”

Anti-tobacco activists have often urged the government to learn from history and not allow vaping as it did tobacco, arguing that the harms of smoking tobacco were not initially known but have since been proven.

The Malaysian Health Coalition has urged the government to delay the implementation of the excise tax collection and reinstate nicotine to the poisons list until the new tobacco Bill is passed.

The Malaysian government, past and present, has strongly advocated for preventive medicine on their healthcare reform agenda. Legalising liquid and gel nicotine goes against this.

The government owes it to future generations of Malaysians to retract the legalisation of vapes, at least until there is a clear way of safeguarding their health.

Loh Foon Fong is a senior freelance health journalist based in Malaysia.

Editor's note: This commentary has been amended to remove an inaccurate reference to the industry's estimate of tax revenue.