The passing of the Control of Tobacco Product and Smoking Bill 2022 (‘the Bill’) suffered a delay as the Dewan Rakyat (House of Representatives) of the Malaysian Parliament agreed on 2 August 2022 to a proposal to refer the Bill to a Parliamentary Special Select Committee (‘PSSC’) to conduct a review of three areas thereof, including the enforcement provisions and quantum of fines to be imposed on offences under the Bill.¹
 
The 13-member PSSC, to be chaired by the Minister of Health, Khairy Jamaluddin, is to make its recommendations within one month or an extended period ending before the first date of the Third Meeting of the Fifth Term of the Fourteenth Malaysian Parliament in October 2022 when the Bill will be considered again by the Malaysian Parliament.²
 
The most publicised aspect of the Bill, dubbed the Generational End Game Bill, is the proposal to prohibit the sale of tobacco products, substitute tobacco products, smoking substances and smoking devices to persons born on or after 1 January 2007. While this is the most revolutionary and far-reaching aspect of the Bill, the proposed law covers many other areas relating to tobacco products, substitute tobacco products, smoking substances and smoking devices. In this article, we will provide a snapshot of the main areas covered by the Bill.
 
The existing legal framework
 
The sale of tobacco products in Malaysia is primarily regulated by the Control of Tobacco Product Regulations 2004³ (‘the Regulations’) that were issued pursuant to section 36 (‘section 36’) of the Food Act 1983. The Regulations, inter alia:

Salient aspects of the Bill
 
Having established the existing regulatory framework, we shall now highlight some salient aspects of the Bill.
 
Wider scope of products covered
 
The Regulations regulate tobacco products, namely tobacco, cigarettes, cigars, snuff and any other forms of tobacco, including any mixture containing tobacco which is designed for human consumption (collectively ‘tobacco products’ and severally a ‘tobacco product’), other than controlled medicinal products under specified laws.
 
The coverage under the Bill is significantly wider. In addition to tobacco products, the Bill also regulates the following:

For the purposes of this article, tobacco products, substitute tobacco products, smoking substances and smoking devices shall be referred to severally as a ‘regulated product’ and collectively as ‘regulated products’.
 
As evident from the above, the Bill will update the law by regulating vaping and e-cigarettes. The wide definition of ‘tobacco product’ and ‘substitute tobacco product’ makes it likely that other smoking products could come within the ambit of the proposed law.
 
Generational end game provisions
 
As mentioned earlier, the provision of the Bill that has received most widespread publicity is the proposed prohibition of the sale of regulated products and provision of any services for smoking to any person who was born on or after 1 January 2007, as set out in clause 13 of the Bill.
 
In addition, clause 17 of the Bill renders it an offence for any person born on or after 1 January 2007 to: (a) smoke any tobacco product or substitute tobacco product; (b) use any smoking device; or (c) possess any regulated products.
 
Two observations can be made on the above. First, smoking of tobacco product or substitute tobacco product in Malaysia will become extinct when the last smoker born before 1 January 2007 stops smoking or passes on, or on an earlier date if producers or importers of tobacco products or substitute tobacco products cease to produce or import these products because it is no longer financially viable to do so.
 
As the provisions of clauses 13 and 17 are applicable only to persons born on or after 1 January 2007, it will be interesting to see whether these provisions can be challenged as being unconstitutional as one may argue it goes against the tenet that all persons are equal before the law.
 
Registration requirement
 
The Bill requires a tobacco product, tobacco substitute product and smoking substance (collectively ‘subject products’ and severally a ‘subject product’) to be registered with the Director General of Health (‘Director General’) before it can be imported, manufactured or distributed in Malaysia. The Director General is required to maintain a register of the subject products that have been registered. It is to be noted that smoking products are not covered by the requirement for registration.
 
Prohibition on advertising
 
The Bill prohibits a person from publishing or facilitating any person to publish any advertisement of a subject product which: (a) contains any subject product; (b) contains any brand name or trade mark relating to any subject product; (c) contains any offer or invitation to purchase any subject product; (d) is intended or likely to encourage any person to smoke; or (e) promotes a subject product as a quit smoking product.
 
The Bill also prohibits advertising of smoking devices. In this regard, a person is prohibited from publishing or facilitating any person to publish any advertisement of a smoking device which: (a) contains any offer or invitation to purchase any subject product; (b) is intended or likely to encourage any person to smoke; or (c) promotes the smoking device as a quit smoking product.
 
Prohibition on promotion or sponsorship
 
The Bill prohibits a person from promoting, sponsoring, or participating in any arrangement⁴ that promotes any regulated product which is intended or likely to encourage any person to smoke or to be promoted as a quit smoking product.
 
Control of sale
 
The Bill contains provisions to control of sale of subject products. Among others, the Bill prohibits:

Control of price, packaging and labelling 
 
The retail price or minimum selling price of any subject product is to be in accordance with the price and conditions as prescribed by the Minister. Furthermore, no person may sell any subject product other than in accordance such prescribed price and conditions.
 
The Bill also prohibits the manufacture, import or distribution of any subject product unless the subject product is packaged and labelled in accordance with the requirements as prescribed by the Minister.
 
Non-smoking area or place
 
The Bill permits the Minister to declare, by order in the Gazette and subject to such conditions as he deems fit, any place or building or any part of a place or building or any area or vehicle, where the public have access, as a non-smoking area or place (‘non-smoking area’). A person who smokes at a non-smoking area commits an offence.
 
A proprietor or occupier of a non-smoking area is required to: (a) display a warning sign of the prohibition against smoking at the non-smoking area; (b) refrain from providing any smoking equipment or facilities or any method intended to encourage any person to smoke at the non-smoking area; and (c) take reasonable measures as determined by the Director General to prevent smoking at the non-smoking area.
 
Provision of information by manufacturer, importer or distributor
 
A manufacturer, importer or distributor of a regulated product is required to provide any information determined by the Director General in relation to the regulated product concerned.
 
Penalties
 
The Bill has a wide range of punishments for a contravention of its provisions.
 
In the case of a contravention by a person born on or after 1 January 2007 of any of the provisions under clause 17 of the Bill by any person of the prohibition of smoking at a non-smoking area, the penalty is a fine not exceeding RM5,000.
 
Generally, a contravention of the other prohibitions under the Bill:

Imitation products
 
The Bill also prohibits the advertising and sale of any imitation of a subject product. Rather inexplicably, the maximum penalties for committing the aforesaid offences in relation to imitation products are less than the maximum penalties for similar offences relating to genuine subject products. For example, the maximum fine that can be imposed against an offender who is not a body corporate for the first offence of selling an imitation subject product is RM10,000 whereas the maximum fine that can be imposed on such offender as aforesaid for selling a genuine subject product is RM20,000.[5] This anomaly must be rectified by significantly increasing the penalties in relation to imitation products for the following reasons - first, imitation subject products are likely to originate from illegal sources where the manufacturing or production quality cannot be verified, and secondly, unlike genuine subject products, it is unlikely that customs and excise duties and sales tax would have been paid on the imitation subject products.
 
Section 36 and the Regulations
 
Concurrently with the presentation of the Bill, the Food (Amendment) Act 2022 (‘Amendment Act’) was tabled before the Dewan Rakyat to delete section 36. The Amendment Act further stipulates that notwithstanding the revocation of section 36, the Regulations shall remain in force until they are amended or revoked. The second and third readings of the Amendment Act has been postponed in view of the Bill being referred to the PSSC.
 
Comments
 
Although the passing of the Bill has been delayed, there is little doubt that it will eventually be passed, probably during the next meeting of the Malaysian Parliament commencing in October 2022.
 
As it can be seen from the above, the Bill seeks not only to prohibit the sale of regulated products to, and smoking by, persons born on or after 1 January 2007, but to also regulate the sale and use of regulated products in Malaysia.
 
There is a substantial overlap between the provisions of the Bill and the Regulations, with the former being more detailed than the latter except for the provisions relating to the labelling and packaging of tobacco products which should be dealt with in subsidiary legislation under the new law.
 
While the Amendment Act makes it clear that the Regulations remain in force, it would be preferable that new regulations be issued under the new law when it comes into operation to replace the Regulations for the following reasons. First, the Regulations are narrower in scope as they only regulate tobacco products but not substitute tobacco products, smoking substances and smoking devices. Second, as the regulation of tobacco products will be transferred to a bespoke legislation to regulate smoking and smoking products, it would make sense that regulations relating to tobacco products should be housed under the same principal legislation.
 
Article by Kok Chee Kheong (Partner) and Sheba Gumis (Partner) of the Corporate Practice of Skrine 

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