In the upcoming parliamentary session in June, Dewan Rakyat members will have the opportunity to consider passing the Control of Smoking Product for Public Health Bill 2023. This proposed piece of omnibus legislation, previously known as the Tobacco and Smoking Control Bill and tabled last year by the previous government, has since been revised and amended based on inputs and suggestions from MPs and a parliamentary select committee. The new bill is expected to be tabled next week.
It has taken an astonishing 13 years to get to this point. Governments have come and gone. Past health ministers have attempted and faltered at the starting line, seemingly intimidated by the political and socioeconomic complexity of having legislation governing tobacco products. It appears to be much easier to legislate on corruption than it is on tobacco and smoking.
Why is the bill needed?
Malaysia does not have a specific law that governs the sale, use and promotion of tobacco products such as cigarettes. The government depends on the Control of Tobacco Product Regulations 2004, its amendments and sub-regulations. These are parked under the Food Act 1983 and subject to the powers and limits of that legislation. These are the same laws that govern nasi lemak production, manufacturing of soft drinks and alcoholic beverages as well as packaging of chicken and eggs.
With the introduction and wide adoption of vaping, such regulations are now struggling, are no longer fit for purpose and possibly even obsolete.
It should be worrying to legislators and the Malaysian general public that the nicotine content for vape products available in this country is among the highest in the world. Nicotine, as most smokers know, is addictive.
Due to the government's recent decision to remove gel and liquid nicotine used for e-cigarettes and vape from the list of scheduled substances under the Poisons Act 1952, there is now a vacuum or a lacuna in the law.
Vape with nicotine now enjoys unrestricted availability and sales to such an extent that a 12-year-old (or even younger) can purchase a disposable with 5% nicotine, and it would neither be illegal to sell nor prohibited to use. That is where we are today.
A single cigarette typically has 1.0 to 3.0mg of nicotine. 16mg per ml of nicotine is approximately 1.6% nicotine. In the UK, Europe, the US, Australia and Indonesia, where vape is regulated, restricted and taxed, the maximum nicotine strength permitted is only 20mg or 2%.
However, in Malaysia, vape liquids in disposables which may cost around RM10 to RM25 and have 3 to 5% nicotine are easily available. New vape users, including minors, visiting retail vape shops are being encouraged to start at 5%. Why? Because they have a stronger kick and a better likelihood of repeat sales. You cannot get such vape devices with high nicotine concentrations in most countries where vape is regulated.
Retailers are selling disposable vape with nicotine devices to children and adolescents who are buying them using their pocket money. More and more packaging and marketing materials seem to be targeting children with bright colours, sweet juicy flavours and even cartoon-shaped devices.
The situation has created an increased urgency to pass the bill which will include vape.
Malaysia needs to bring its tobacco-related legislation and regulations to the same standards as other countries such as Australia, Thailand and Singapore. It needs a separate law that acts as primary legislation, not just for tobacco products, but also for vape and other future nicotine delivery systems.
Our laws and regulations are fast falling behind.
Is the bill punishing smokers and vapers?
People who smoke and those who vape are not and have never been "the enemy". No one wishes for their daughters, sons, grandchildren, family members and loved ones to become addicted to nicotine, suffer from chronic diseases such as lung cancer and lose their lives prematurely.
Quitting is hard. It takes smokers at least 30 attempts, and relapse rates are high. The increasing presence of vape users at smoking cessation clinics makes up a new group of people wanting to be treated for their nicotine addiction. More and more smokers and vapers are desperate to quit.
The generational endgame or GEG aims to restrict and prohibit the sale, supply, delivery and use of vape and tobacco products such as cigarettes to those born after a certain year. It is intended to lock the gate against the possibility of new smokers and vapers, especially among young people.
Those who are already smokers and vapers would not be affected by this legal block. They would still be able to purchase, smoke and vape.
Will the bill address and prevent smoking and vaping?
Yes and no. Yes, the bill will boldly aim to reduce and prevent a new generation of people from becoming addicted to nicotine. But, no, like many harmful behaviours, a law will not be able to absolutely prevent smoking and vaping among those who are dead set on wanting to do it. The decision whether or not to smoke and vape is still up to the individual.
Malaysia's smoking prevalence has hovered around 21% for several years. This may seem acceptable until a further breakdown of the national data reveals that almost half of all men smoke cigarettes. Around 1% of women smoke. 17.4% of children aged 13 to 15 smoke. 1 in 10 of those aged younger than 12 have already lit up a cigarette.
According to the National Health and Morbidity Survey 2019, 1.12 million people in Malaysia are now vaping and using e-cigarettes. A 2021 industry survey indicated that around 68% of male respondents and 32% of women respondents vape. Another study estimated that at least 600,000 children between the ages of 11 and 18 have already taken up vaping.
The findings from the recently launched Adolescent Health Survey 2022 by the health ministry are worrying.
The overall prevalence of children aged 13 to 17 years currently using e-cigarettes or vape rose from 9.8% in 2017 to 14.9% in 2022. More adolescent males were vaping in 2022 (23.3%) than females at 6.2%.
Malaysia's vaping prevalence among this group of children is already higher than the US, which is less than 10%.
Interestingly, cigarette smoking among adolescents surveyed dropped significantly. Fewer children aged 13 to 17 years of age used cigarettes, dropping from 13.8% in 2017 to 6.2% in 2022. 10.8% of adolescent males were smoking cigarettes, while females were around 1.7%.
The numbers of vape users who are becoming newly addicted to nicotine, many of whom have never smoked cigarettes before, are increasing and getting younger each year. As long as vape remains unrestricted and unregulated, the journey to nicotine addiction in Malaysia begins in individuals as young as 10 years old.
Unfortunately, the sight of kids vaping away outside schools, shopping malls and public spaces no longer shocks people. It has become normalised.
While no substantial evidence can currently be provided that adult cigarette smokers in Malaysia are switching to vape en masse, thus reducing their numbers, it seems that for children who smoke, this trend is clearly the case.
It is likely that vaping is now the preferred choice for kids who need to get their nicotine fix as it is more cost-effective, stronger than cigarettes and easily concealed or stored to be used later. Vape devices now come in cool designs, sweet flavours as well as bright and colourful packaging. Smoking stinky cigarettes is for your dad, grandfather and other old people. To a school kid, vaping nicotine makes more sense, is cost-effective and is on trend. Sound familiar?
It is in Malaysia's best interest to enact legal safeguards and prohibitions that work towards reducing the number of smokers, vapers and the problem of nicotine addiction in general.
Is vaping safer than cigarettes?
Tobacco is a unique product. It cannot be treated similarly or compared to sugar or alcoholic drinks. When used properly as intended, it is a fact that smoking will kill half of its consumers.
We know that there are far fewer carcinogens produced in vape liquids and gels when they are heated and vapourised, as compared to the hundreds from burning tobacco. When tobacco smoke is inhaled, the tar forms a sticky layer on the inside of the lungs, causing damage that may lead to lung cancer, emphysema or other lung problems.
What the vape and tobacco industries are now saying is that smoking is addictive, but vaping is not – that breathing in burnt tobacco fumes is harmful, but inhaling nicotine in a vapour is safe.
However, the fact is that we still do not know enough about the long-term effects of vaping, and repeated advisories on this issue have long emphasised that vaping is less harmful but not safe.
What we are starting to see are dozens of adolescents, teenagers and young adults who are being admitted into Malaysian public and private hospitals from lung inflammation, chronic bronchitis, emphysema, chronic obstructive pulmonary disease and e-cigarette or vaping use-associated lung injury. Some of these respiratory diseases are supposed to take years to develop, yet they are now appearing in increased numbers among a specific population – young people who are hardcore vapers and only started vaping within the past couple of years. In comparison, there are fewer such respiratory illnesses diagnosed among teenagers smoking cigarettes of the same duration.
Vaping could mean it is less likely for a person to develop lung cancer but an increased risk of other serious chronic respiratory diseases.
People who vape also find that though they may have stopped smoking cigarettes, their nicotine addiction has transferred to e-cigarettes and vape. Some will be dual users, where they smoke both tobacco and e-cigarettes. Quit-smoking clinics in Malaysia are already seeing patients who are both smoking cigarettes and vaping.
Should vape be treated similarly to cigarettes?
Malaysia became a party to the WHO Framework Convention on Tobacco Control in 2005. As a result, the tobacco industry was banned from sponsoring sporting events, public marketing and promotions. However, today, vape is doing exactly what tobacco has been prohibited from doing. The vape industry sponsors sports, paintball and futsal tournaments, festivals and other lifestyle events. Vaping is made to look cool, glamourous, sexy and sophisticated. They are using social media influencers to get more young people to start vaping.
The vape industry should be regulated as strictly as tobacco in terms of vape-related sales, advertising, promotions, sponsorships and imposed with appropriate taxes.
What is the cost of not passing the bill?
For every RM1 collected from the tax currently imposed on tobacco products, RM4 is spent on treating those suffering from chronic smoking and vape-related diseases such as lung cancer and chronic obstructive pulmonary disease. Unfortunately, an estimated 27,000 people annually will prematurely lose their lives due to these conditions.
The tax revenue to be collected from the excise duty on vape liquids with nicotine content at 40 sen per ml has been estimated to be on the sunny side of RM600 million.
As public healthcare in Malaysia is highly subsidised by tax revenue, the government is spending at least RM16 billion a year to treat patients with diseases caused by smoking and vaping.
Combined with the indirect cost such as loss of productivity, disability and poor quality of life, this amount constitutes an estimated 1.3% of Malaysia's gross domestic product.
These numbers are expected to worsen and rise, especially with the absence of any legislation or regulation on vape and the removal of gel and liquid nicotine for e-cigarettes and vape from the scheduled substances list.
What will it take to pass the bill in Parliament?
This piece of legislation is urgently needed, critical and long overdue. Perhaps in the future, we will look back at the harm and suffering caused by smoking and vaping, the lives lost prematurely, the billions wasted and wonder why we took so long to act and why we hesitated.
The government of the day and MPs must wake up to these stark and harsh realities. They will decide whether nicotine vape and cigarette smoking will remain a constant feature of Malaysia's future.
The industries are changing their business models, moving from cigarettes to vape as the main nicotine delivery device for the masses. They are moving faster, leaving obsolete legislation and exploiting loopholes. It will soon be hard to differentiate between those selling cigarettes and those selling nicotine vape.
Removing liquid or gel nicotine from the list of controlled substances without legislation or even basic regulations in place was and continues to be a major mistake. Vape remains unregulated, unrestricted and out of control. It will remain so until this bill is passed by Parliament.
Of late, political leaders and elected representatives have been sending conflicting messages or have even been silent on this issue of the bill. Have they given up and decided that nothing more can or should be done when it comes to cigarettes and e-cigarettes? That it is a lost cause? Will Dr Zaliha Mustafa be able to complete what Khairy Jamaluddin began?
This is a piece of legislation that if implemented properly and effectively, will help save the lives of thousands of Malaysians each year. This is a legacy to be proud of.
We need a major effort to denormalise smoking and vaping, to reduce the appeal and make such products less accessible. It cannot be business as usual. Who should we depend on to make the tough decisions concerning tobacco and vape? Should we just kick the problem down the road for other parliamentarians or another government to solve?
Let us table and pass this bill.
Azrul Mohd Khalib is the head of Galen Centre for Health & Social Policy.
The views expressed in this article are those of the author(s) and do not necessarily reflect the position of MalaysiaNow.