GEG would have exposed govt to lawsuits.
In a third attempt to legislate the anti-smoking law, the Health Ministry tabled the revised Control of Smoking Products for Public Health 2023 Bill for the first reading in the Dewan Rakyat yesterday.
Health Minister Dr Zaliha Mustafa also retracted the earlier version of the Bill, which had been introduced for its first reading in June.
The revised Bill omitted the generational end-game (GEG) provisions that aimed to prohibit individuals born from 2007 onwards from smoking or purchasing smoking products.
Instead, clause 17(1) of the new version of the Bill prohibits minors under the age of 18 from smoking, chewing or using any tobacco products or substitute tobacco products. Under clause 17(2), any minor who fails to comply will have committed an offence.
It further prohibits the sale of such products and the provision of any services related to smoking to a minor.
Minors who purchase tobacco products, smoke substances, or use substitute tobacco products may face a fine not exceeding RM500 or be ordered to perform community service, in accordance with the Criminal Procedure Code or the Child Act 2001.
According to Clause 13(2)(a) of the proposed Bill, a person found to have committed an offence of selling tobacco products, smoking substances, or substitutes, or providing any services related to smoking to a minor, shall be fined not more than RM20,000, imprisoned for not more than a year, or both.
If the offence is committed for the second time, the individual will be subject to a fine of up to RM30,000, imprisonment of up to two years, or both.
Corporate bodies committing the same offence will be fined not less than RM20,000 and not more than RM100,000. They will also be subjected to imprisonment for up to two years or both.
The Bill proposed that for repeat offences, the corporate body faces a fine of between RM50,000 and RM300,000, a prison term of up to three years, or both.
“Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding RM500 or be ordered to perform community service pursuant to the Criminal Procedure Code or the Child Act 2001,” the Bill read.
In a press conference following the tabling of the Bill, Dr Zaliha stated that the proposed anti-smoking legislation will also prohibit underage individuals from vaping or purchasing vape products.
Additionally, shisha is another product included in the list that minors are prohibited from purchasing.
Dr Zaliha said any substance or combination of substances for smoking is on the prohibited list. These included substances such as nicotine, propylene, glycol, glycerol and triethylene glycol, which are used in vape.
She noted that the removal of nicotine gel from the Poison’s Act 1954 had created a regulatory gap concerning its use, particularly in vaping.
Dr Zaliha highlighted that the inclusion of a provision to regulate vaping was aimed at addressing this loophole.
Meanwhile, the regulation of smoking devices would fall under the Domestic Trade and Cost of Living Ministry.
The original Bill, named the Control of Tobacco Products and Smoking Bill 2022, was first tabled by former Health Minister Khairy Jamaluddin last year.
Subsequently, it was referred to the Parliamentary Special Select Committee (PSSC) for refinement in response to resistance from various lawmakers.
According to Dr Zaliha, the GEG provision has been pushed aside but not forgotten entirely.
She said the exclusion of the GEG from the revised Control of Smoking Products for Public Health 2023 Bill was based on the Attorney General’s Chambers’ (AGC’s) concerns about the constitutionality of the GEG, which sought to ban individuals born from 2007 onwards from smoking or purchasing smoking products.
The AGC expressed concerns that the GEG contradicts Article 8 of the Federal Constitution by creating unequal legal treatment between a person born before Jan 1, 2007, and a person born on or after Jan 1, 2007.
“We sought a lot of views. The AG has given the views that the matter relates to Article 8 and it can be challenged (in court),” she told reporters at the briefing in Parliament yesterday.
To address the loopholes resulting from the delisting of nicotine gel from the Poison’s Act 1954 and the regulation of vaping, the ministry had to prioritise key issues.
Dr Zaliha said the ministry will monitor the situation once the Bill takes effect.
“If we feel that there is a need to relook at the possibility of GEG, maybe then we will bring it back. But I am not giving any timelines,” she said.
When asked about the inclusion of the GEG in previous versions of the Bill, despite the AGC’s assertion that it was consistent with its views since 2022, she said the question should be directed to her predecessor, Khairy Jamaluddin.
“That one, you have to ask KJ (Khairy). I was made to understand that the AGC has been consistent with (the views) that Article 8 can be challenged. KJ chose to persist,” she said.
“We are a new government, and we choose to seek the views of federal agencies, especially the AGC. That is why we arrived at the decision to table the Bill without GEG.”
On Khairy’s reaction to the Bill, Dr Zaliha stated that it was his personal view.
Earlier on Tuesday, Khairy, the chief architect of the bill, said the strong lobbying by tobacco industry players is the reason the GEG provision was dropped.
While this may be a victory for the Big Tobacco and vape industries, the former Health minister emphasised that the battle to safeguard Malaysians’ health is far from over.