Vape bans: A Slippery slope for legal governance
The court found that state authorities had overstepped their powers by refusing to renew licences issued under federal law, thereby infringing on the rights of a legally licensed business and violating the Federal Constitution.
This landmark ruling is more than just a win for the gaming industry; it underscores a critical principle: state governments cannot override federal law at will.
Yet just months later, we are seeing the same pattern emerge again, this time with the vape industry. Kedah has announced it will no longer renew licences for vape-related businesses, with the goal of a complete ban by 2026. Other states such as Pahang, Terengganu and Perlis are following suit.
This trend raises urgent questions about the balance of power in our federal system. What started with gaming licences is now extending to vape. Tomorrow, will it be food and beverages? Or wellness and lifestyle services?
If states are allowed to selectively shut down federally regulated sectors, Malaysia risks descending into legal fragmentation where trade and commerce depend more on local politics than national law.
The role of Act 852: A necessary legal anchor
Rather than allowing states to adopt unilateral bans, the federal government must focus on fully enforcing Act 852 across the country.
Act 852 was passed after years of consultation and debate. It represents a balanced and structured approach to regulating smoking and vaping products, protecting youth, ensuring product safety, and reducing public health risks while allowing regulated access to adults.
Its successful enforcement is not just a health issue; it is a legal imperative. If states are allowed to disregard it through political or moralistic motivations, the Act's legitimacy will be compromised.
From a legal standpoint, only a consistent, centralised framework can ensure that public health regulations are enforced uniformly, fairly, and in accordance with constitutional principles.
Legal uncertainty hurts the rule of law and public confidence
One of the hallmarks of a sound legal system is predictability. Businesses, consumers, and civil society should be able to rely on a stable set of laws and policies.
When that stability is undermined by states choosing to selectively ban certain industries, it weakens the rule of law and opens the door for selective enforcement, politicisation of trade, and judicial overload from legal disputes.
This also affects the very communities the bans claim to protect. Instead of driving behaviour change, bans often push products into illicit channels, where there is no age restriction, no safety oversight, and no taxation. This undermines the public health objectives of Act 852 and increases enforcement burdens.
The way forward: Uphold the law, not politicise it
The lesson from the Sports Toto ruling is clear: state governments do not have the authority to override federal laws with blanket bans. Vape should not be the next legal battleground.
The federal government must assert the supremacy of laws passed by Parliament and ensure that public health policies are governed by national interest, not fragmented by state agendas.
Act 852 provides the legal tools to regulate the vape industry effectively. What's needed now is not more bans but better enforcement.
Malaysia must decide whether it wants to be governed by clear laws or discretionary bans. The answer will determine whether our legal system continues to uphold constitutional order or gives way to a patchwork of conflicting state policies. ‒ July 21, 2025
R. Paneir Selvam is the principal consultant of Arunachala Research & Consultancy Sdn Bhd, a think tank specialising in strategic national and geopolitical matters.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.
Main image: SCMP
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