The legal 'loophole' allowing a vape company to sponsor Terengganu RXZ motorcycle gathering attended by state MB
A massive gathering of over 40,000 motorcycle enthusiasts took place in Kuala Nerus, Terengganu recently and made headlines nationwide thanks to the colourful participants and their antics. However, the event, “RXZ Members 6.0”, did cause a few controversies.
These include traffic offences made by the participants, which yielded some 89 summonses, and sadly, the deaths of 3 participants who were involved in road accidents following the event.
Beyond that, there has been outrage from certain public quarters due to 1 of the event’s major sponsors. This is because the sponsor in question, Elfbar, is a vape brand, with many finding that such blatant promotion of a tobacco product shouldn’t have taken place.
The brand’s logo is advertised throughout the venue at the Terengganu Motorsports Circuit. Moreover, the vape brand was clearly visible when the official shirt was worn by Terengganu Menteri Besar Dato’ Seri Ir Ahmad Samsuri, who attended the closing ceremony of the event.
Beyond the obvious unethical aspect of the matter, sponsorship and promotion of vape products is actually against the law in Malaysia. For context, such an act is an offence under the Control of Smoking for Public Health Act 2024 which was gazetted on 2 February 2024 and came into force on 1 October 2024.
However, thanks to a legal ‘loophole’, the company or the organiser won’t face any action from the authorities.
Well, join us as we explain the matter in depth below.
Control of Smoking Products for Public Health Act 2024
While vape products are now allowed and regulated in Malaysia, there are still restrictions in place regarding the products’ promotion. This is governed by the Control of Smoking Products for Public Health Act 2024.
Under Section 7(1) of the Act, the publishing of advertisements or facilitating any person to publish any advertisement of products as per below is expressly prohibited:
Contains any tobacco product, smoking substance or substitute tobacco product
Contains any brand name or trademark relating to any tobacco product, smoking substance or substitute tobacco product
Contains any offer or invitation to purchase any tobacco product, smoking substance or substitute tobacco product
Is intended or likely to encourage any person to smoke
Promotes any tobacco product, smoking substance or substitute tobacco product as a quit-smoking product
Promotes any goods used in association with any tobacco product, smoking substance or substitute tobacco product
As for what is meant by “tobacco product”, Section 2 of the Act defines it as processed tobacco or any product that contains tobacco which is designed for human consumption. Meanwhile, a “substitute tobacco product” means any product or processed product, other than a tobacco product, that is capable of being smoked, whether with or without a smoking substance.
Furthermore, the Act considers “advertisement” as being any representation by any means for the purpose of promoting directly or indirectly any tobacco product, smoking substance or substitute tobacco product.
Relating to the matter at hand, the vaping products by the RXZ Members 6.0’s sponsor Elfbar could be considered both a tobacco product and a substitute tobacco product under the Control of Smoking Products for Public Health Act 2024. This is because the company offers both tobacco and non-tobacco vape products.
Hence, given that the event had published banners and logos advertising the vape company, it can be argued that the organiser of the event had contravened Section 7(1) of the Act.
Section 7(2) of the Act below prescribes potential punishment for offences under the provision if convicted:
Should the offender be an individual, they may face up to RM20,000 fine or jail of up to 1 year or both if convicted for a first offence under the provision. Should it be their second or subsequent offence, they may then face up to RM30,000 fine, up to 2 years in jail, or both.
Meanwhile, if the offender is a body corporate, they may face a fine between RM20,000 to RM100,000, up to 2 years in jail, or both if it’s their first offence. If it’s a second or subsequent offence, they may face a fine between RM50,000 to RM300,000, jail of up to 3 years or both.
Besides that, Section 9 of the Control of Smoking Products for Public Health Act 2024 prohibits the promotion or sponsorship of tobacco products below:
Therefore, should the an offender be charged under this provision, they may face action under Section 9(3) of the Act below:
If the offender is an individual, they may face up to RM20,000 fine, imprisonment of up to 1 year, or both for their first offence. For a second or subsequent offence, the punishment prescribed is a fine of up to RM30,000, jail of up to 2 years, or both.
Meanwhile, if the offender is a body corporate, they may face a fine between RM20,000 to RM100,000, imprisonment of up to 2 years, or both for their first offence. If it’s a second or subsequent offence, they may face a fine between RM50,000 and RM300,000, imprisonment of up to 3 years, or both.
The legal ‘loophole’ allowing for the vape company to sponsor the event
However, for the RXZ Members 6.0 event, all of the above are rather academic simply because the Control of Smoking Products for Public Health Act 2024 only came into force on 1 October 2024, almost a month after the event’s conclusion.
While the Act was gazetted on 2 February 2024, Health Minister Datuk Seri Dr Dzulkefly Ahmad only recently announced the legislation’s date of enforcement, as reported by FMT.
Given that the Act will only come into force on 1 October, the relevant authorities can’t take any action against offences that took place prior to it being enforced. This is because a law can only be applied to an act that occurs after it’s adopted and can’t be enforced retrospectively.
This right is enshrined under Article 7(1) of the Federal Constitution below:
Moving forward, let’s hope that with the enforcement of the Control of Smoking Products for Public Health Act 2024, vape or tobacco product sponsorship such as this can be curtailed in Malaysia. Promotion and sponsorships such as this are not only against the law, but they also promote unhealthy products and lifestyles.
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