Justice Aliza Sulaiman also found the exemption order to be irrational as it was made without properly consulting the Poisons Board.

The suit was filed by the Malaysian Council for Tobacco Control, the Malaysian Green Lung Association, and Voice of the Children.

It named the health minister and the federal government as respondents.

In her ruling, Aliza, now a Court of Appeal judge, found that the exemption was driven primarily by economic considerations linked to the government’s plan to tax vape liquids containing nicotine.

“Despite recognising that electronic cigarettes and vape liquids are dangerous to health, the first respondent (health ministry) proceeded to make the impugned order to give effect to the decision regarding taxation,” she said.

She said the exemption created a legal gap in regulating nicotine vape products before the Control of Smoking Products for Public Health Act 2024 came into force on Oct 1, 2024.

She held that Parliament had never intended for nicotine vape products to remain unregulated during that period.

On consultation with the Poisons Board, Aliza ruled that the process undertaken by the government was merely a formality.

She said there was no physical meeting between the then health minister and the board, and no further discussions were held after the board unanimously rejected the proposal to exempt nicotine vape liquids and gels from the poisons list.

“If I can put it rather crudely, it was almost like a done deal,” she said.

The court also held that consultations under Section 6 of the Poisons Act 1952 must be “conscious, meaningful, purposeful and effective”.

No order for costs was made after the applicants said they were not seeking costs since the matter involved public interest litigation.

Lawyer K Shanmuga represented the public health groups, while senior federal counsel Nurhafizza Azizan represented the respondents.