The backstory
 
On 27 July 2022, the game-changing Control of Tobacco Product and Smoking Bill 2022 (“the 2022 Bill”) was presented to the Dewan Rakyat (House of Representatives) for its first reading by the then Minster of Health, Khairy Jamaluddin.
 
The most publicised aspects of the 2022 Bill, dubbed the Generational Endgame Bill, were the proposals to prohibit persons born on or after 1 January 2007 from smoking tobacco products, substitute tobacco products and smoking substances and the sale of the aforesaid products and smoking devices to persons within this category of people (‘endgame provisions’).
 
The 2022 Bill was referred by the Dewan Rakyat to a Parliamentary Special Select Committee to conduct a review of three areas, including the enforcement provisions and quantum of fines to be imposed on offences under the 2022 Bill.¹ The 2022 Bill did not proceed further due to the dissolution of the Fourteenth Malaysian Parliament at its subsequent meeting in October 2022.
 
Thereafter, the 2022 Bill was re-tabled to the Dewan Rakyat on 12 June 2023² as the Control of Smoking Products for Public Health Bill 2023 (‘the original 2023 Bill’) which retained the endgame provisions but reduced the punishment for smoking-related offences committed by persons born on or after 1 January 2007 from a maximum fine of RM5,000 to RM500 or alternatively, the requirement to perform community services.
 
In an unexpected and dramatic turn, the original 2023 Bill was withdrawn on 28 November 2023 and a new Bill bearing the same name (‘the revised 2023 Bill’) was tabled in its place.
 
The most significant changes introduced under the revised 2023 Bill is the removal of all endgame provisions. Several provisions were added to prohibit the use of tobacco product, smoking substance and substitute tobacco product (severally a ‘regulated product’ and collectively ‘regulated products’) by minors, namely persons under the age of eighteen years, and the sale of such products to minors. Smoking devices were also excluded from the ambit of the revised 2023 Bill.
 
Although healthcare advocates and anti-smoking groups as well as politicians from both sides of the political divide expressed disappointment at the removal of the endgame provisions, the revised 2023 Bill was passed on 30 November 2023 and will continue its legislative journey towards becoming law.
 
In this article, we highlight the salient provisions in the revised 2023 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 revised 2023 Bill
 
Having established the existing regulatory framework, we shall now highlight some salient aspects of the revised 2023 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 other than controlled medicinal products under specified laws.
 
The scope of the revised 2023 Bill is significantly wider as it regulates (a) “tobacco product”, that is processed tobacco or any product that contains tobacco which is designed for human consumption; (b) ‘smoking substance’, that is any substance or combination of substances, used for smoking, including nicotine, propylene glycol, glycerol and triethylene glycol; and (c) ‘substitute tobacco product’, that is any product or processed product, other than a tobacco product, that is capable of being smoked, with or without smoking substance.
 
As evident from the above, the revised 2023 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.
 
Registration requirement
 
A regulated product must 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 regulated products that have been registered.
 
According to the current Minister of Health, Dr Zaliha Mustafa, importers, manufacturers and distributors of regulated products in Malaysia will be given six months from the date of enforcement of the new law to register their products with the Director General.⁴
 
Prohibition on advertising
 
The revised 2023 Bill prohibits a person from publishing or facilitating any person to publish any advertisement which: (a) contains any regulated product; (b) contains any brand name or trademark relating to any regulated product; (c) contains any offer or invitation to purchase any regulated product; (d) is intended or likely to encourage any person to smoke; (e) promotes a regulated product as a quit smoking product; or (f) promotes any goods used in association with any regulated product.
 
Prohibition on promotion or sponsorship
 
A person is prohibited under the revised 2023 Bill from promoting, sponsoring, or participating in any arrangement⁵ that promotes any regulated product which is intended or likely to encourage any person to smoke or any regulated product to be promoted as a quit smoking product.
 
Control of sale
 
To control the sale of regulated products, the revised 2023 Bill, among others, prohibits: 

Prohibition relating to minors
 
The revised 2023 Bill prohibits the sale of any regulated product and provision of any services for smoking to a minor.
 
The revised 2023 Bill also prohibits a person who is a minor from purchasing, smoking, chewing or using in any manner, any regulated product. A person who contravenes any of these prohibitions is liable to a fine not exceeding RM500 or be ordered to perform community service.⁶ The extent to which these sanctions can be enforced against minors remains to be seen. Will these offences be construed as strict liability offences or will it be necessary to establish mens rea (i.e. criminal intent) to constitute an offence?
 
Control of price, packaging and labelling 
 
The retail price or minimum selling price of any regulated product shall be in accordance with the price and conditions as prescribed by the Minister. Furthermore, no person may sell any regulated product other than in accordance such prescribed price and conditions.
 
The revised 2023 Bill also prohibits the manufacture, import or distribution of any regulated product unless the regulated product is packaged and labelled in accordance with the requirements as prescribed by the Minister.
 
Non-smoking area or place
 
The revised 2023 Bill permits the Minister to declare, by order published 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 in the prescribed form 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 all 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 as determined by the Director General or any authorised officer in relation to the regulated product concerned.
 
Imitation products
 
The revised 2023 Bill also prohibits the advertising and sale of any imitation of a regulated 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 regulated 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 of a regulated product is RM10,000 whereas the maximum fine that can be imposed on such offender as aforesaid for selling a genuine regulated product that does not comply with the prescribed requirements for its sale or display is RM20,000.⁷ This anomaly must be rectified by significantly increasing the penalties in relation to imitation products for the following reasons - first, imitations of a genuine regulated product are likely to originate from illegal sources where the manufacturing or production quality cannot be verified, and secondly, unlike genuine regulated products, it is unlikely that customs and excise duties and sales tax would have been paid on the imitations of a regulated product.
 
Section 36 and the Regulations
 
Concurrently with the passing of the revised 2023 Bill, the Food (Amendment) Bill 2023 (‘Food (Amendment) Bill’) was also passed by the Dewan Rakyat to delete section 36 which relates to tobacco and tobacco product. The Food (Amendment) Bill further stipulates that notwithstanding the revocation of section 36, the Regulations shall remain in force until they are amended or revoked. As in the case of the revised 2023 Bill, the Food (Amendment) Bill will continue its legislative journey towards becoming law.
 
Comments
 
The prohibition of sale of regulated products to minors and the prohibition of minors from smoking purchasing, smoking, chewing or using any regulated product under the revised 2023 Bill are not groundbreaking as similar, but not identical, prohibitions already exists under the Regulations in relation to tobacco products.
 
After a long and arduous journey, probably the longest in recent history for a Government Bill, the proposed law to control smoking in the form of the revised 2023 Bill has finally begun its passage to becoming law. While the revised 2023 Bill has a redeeming feature of bringing smoking substances and substitute tobacco products within the ambit of the law, the disappointment at the withdrawal of the endgame provisions is understandable. By backtracking from the ambitious goal of bringing an end to smoking in Malaysia, the endgame was doomed to be an anti-climax.
 
 
Article by Kok Chee Kheong (Partner), Sheba Gumis (Partner) and Faith Chan (Associate) of the Corporate Practice of Skrine
 
 

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