[COLUMNIST] Generation End Game - Best way forward

I would like to reiterate that the aspirations behind the GEG must be lauded – it is novel, revolutionary, and a catalyst for cultural change. More importantly, it signifies the government’s seriousness in tackling a persistent epidemic. Nevertheless, despite the trappings of an ambitious piece of legislation, one simply cannot turn a blind eye to the inextricable legal perils it presents. I feel compelled to comment on this matter in light of unresolved concerns about constitutionality, enforcement and practicality.

In essence, tobacco endgame legislations strive to achieve a tobacco-free society. It marks a rather radical departure from the conventional approach of age-restricted access coupled with intense educational campaigns. While Malaysia and New Zealand are the pioneers of endgame strategies for smoking, the scope of the law in both jurisdictions differs. In Malaysia, the GEG aims seeks to prohibit the sale to and use by anyone born from January 1, 2007, of tobacco and vape products, whereas in New Zealand, the government recognises that "vaping has the potential to help people quit smoking and contribute to New Zealand’s Smokefree 2025 goal." In fact, the New Zealand’s Ministry of Health recognised vape products and heated tobacco products as a means to achieve a smoke-free population by encouraging smokers to switch to less harmful, non-combustible nicotine products. The ongoing debate surrounding the GEG raises important questions: how do we arbitrate the tension between individual freedom and public health goals? Can an absolutist approach to tobacco control be effective without taking into account the nature of nicotine addiction?

At this juncture, is it worth mentioning that it is settled law that freedom of choice can be curtailed in justifiable circumstances, especially when it is for a greater good hence GEG does not curtail the spirit of Article 5 of the Federal Constitution. Be that as it may, I cannot simply overlook the potential contravention of Article 8 of the Federal Constitution. For the uninitiated, Article 8 proclaims that all persons are equal before the law and entitled to equal protection of the law. The constitutional proclamation inhibits blanket and arbitrary discrimination – I must add that Article 8 must be interpreted as “operate alike on all persons under like circumstances”, rather than “all persons must be treated alike”.

Allow me to illustrate this point further with a scenario in the near future: A group of colleagues, all of whom are of legal age, are lighting up during their cigarette break. Despite being in the same location and smoking cigarettes, only one of them is consuming a banned product because he was born in 2007 and one wonders where and how did that person purchase it.

The scenario above demonstrates how GEG is discriminatory as it deprives a generation of consenting adults of exercising their liberty while others are free to do as they wish, in similar circumstances. It is undeniable that the road to a tobacco-free society is paved with good intentions, but have we truly exhausted all policy options before risking a radical, abrupt, and untested approach? I urge the government to tread with conscience as this could lead to another pandora’s box of abuse and erosion of civil liberties. For many years we have had issues with abuse of enforcement powers and having a policy ban such as the GEG will create further opportunities for corruption. Using legislation to ban smoking entirely amongst future generations will lead to black market and illicit tobacco sale with massive challenges of enforceability.

Constitutional question aside, there is a logical leap under this paradigm as cigarettes will still be widely available in the market to cater to adults who are not prohibited from smoking. I argue that this is a feeble attempt to change the narrative that cigarettes are harmful at the population level.

Now, I must reiterate that I am a proponent of a cigarette-free society. The government of the day should declare combustible cigarettes as the most harmful method of consuming nicotine. We can’t ignore reality either – vaping and other forms of alternatives have been successfully recognized as less harmful alternatives with appropriate controls imposed.

With utmost respect, I implore the government to explore other policy solutions in redesigning the laws for tobacco and nicotine products. This includes taking key learnings from the likes of Japan, UK and New Zealand on the regulatory treatment for these products and how it differs based on its risk profile, cigarette being the most harmful and vaping on the other end of the risk spectrum. The GEG should not be at the forefront of the Tobacco Bill at this point of time. It should be decoupled and subjected to a comprehensive review given its socio-economic impact.

The global community has arrived at a unique tipping point considering the unprecedented attitudinal shift towards cigarettes; what was once seen as cool is now deemed a public health concern. Countries like Japan and the UK are witnessing unprecedented collapse in the sale of cigarettes; Japan, known as a smoker’s paradise with one of the highest smoking prevalence of amongst male adults at 28.5%, is now experiencing an accelerated decline of cigarette sales by 42% compared to 2016. Both the UK and Japan did not resort to drastic and abrupt measures to curtail cigarette prevalence. Rather, they adopted the harm reduction approach by introducing less harmful cigarette alternatives in the market as a gradual yet sustained approach to reduce nicotine dependence.

The principle behind harm reduction is simple: policymakers need to be pragmatic in recognising that nicotine addiction will not go away overnight. Rather than an arbitrary cut-off point of access, the government introduces less harmful cigarette alternatives in the market as a go-to option. Despite a much lower smoking prevalence compared to Malaysia, New Zealand’s comprehensive vape regulation demonstrates that endgame tobacco strategy must be supplemented with a harm reduction approach during the transitional phase. The refusal to acknowledge the chokehold nicotine addiction has on smokers is a policy failure and it will simply turn them away from seeking help; or worse, to unregulated illicit cigarettes or vapes in the black market.

Through the harm reduction strategy, the government is humanising its approach to addiction and simultaneously allowing itself the much-needed time and assessment needed before introducing an untested and contentious law. The GEG is ideal; but we do not live in an ideal world. Generational goals require transitional measures. Policymakers needs to bite the bullet and embrace new technology in nicotine delivery to wean society off harmful cigarettes. The harm reduction approach is not contradictory to the endgame legislation; it is the much-needed stop-gap measure to phase out cigarettes from future generation.

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Tun Zaki Tun Azmi was a Malaysian barrister who served as the sixth Chief Justice of Malaysia (2008 – 2011).