The danger of e-cigarette prohibition and illicit trade

I have written to officials in Malaysia to caution against creeping vape prohibition coming in through state-level vape bans, which have been encouraged by health and medical stakeholders. It’s hard to think of a worse policy on e-cigarettes than an outright prohibition for the reasons given in the letter below [See PDF formatted version].

Yet international organisations and foundations are pushing this reckless and evidence-free idea through their influence with the WHO and funding for activists in critical countries, including Malaysia, but not only Malaysia. WHO has been incentivising prohibitions, yet has so far not undertaken any assessment of the effects of the policies it promotes, many of which are predictable and likely to be harmful.

My letter is below and has been sent to the following:

• YAB Dato’ Seri Anwar Ibrahim, Prime Minister 
• YB Tan Sri Dato’ Johari Abdul, Speaker of Parliament 
• YB Datuk Seri Dr. Dzulkefly Ahmad, Minister of Health 
• YB Anthony Loke, Cabinet Minister
• YAB Dato’ Seri Amirudin Shari, Chief Minister of Selangor 
• YB Jamaliah Jamaluddin, Selangor State Health Executive Councillor

To: ​YAB Dato’ Seri Anwar Ibrahim, Prime Minister

From: Clive Bates, Director, Counterfactual Consulting, London, UK. 

28 May 2025

I am a UK-based independent consultant in sustainability and public health. I have been involved in tobacco control since 1997, and I used to run the main anti-smoking organisation in the UK. I also worked as a senior civil servant in the UK government and the UN. I have no conflicts of interest related to tobacco, nicotine, or pharmaceutical companies, and no issues arise under Article 5.3 of the WHO Framework Convention on Tobacco Control.

Respectfully, I am writing to express my concern about recent negative developments in Malaysia’s tobacco control policies. I strongly caution against proposals for e-cigarette bans emerging at the state level, notably in Johor, Kelantan, Terengganu, Perlis and now possibly in Malacca, Negeri Sembilan, Penang and Selangor. [news coverage]

Such prohibitions would effectively override the Control of Smoking Products for Public Health Act 2024 and related regulations. This Act regulates rather than prohibits e-cigarettes. I believe that proportionate regulation, rather than prohibition, is the most effective approach worldwide and best suited for Malaysia at both the national and state levels. WHO endorsed the Act with prestigious awards to its chief architects, and the Consumers’ Association of Penang described it as “vital and historic legislation for our nation” [statement]

Prohibitions lead to a wide range of harmful unintended consequences, as discussed below.  If I may, I would like to briefly set out the arguments for proportionate regulation rather than prohibition.  I have added links to more complete evidence with sources.  

1. Smoking is a major driver of disease and premature death, and this will become more significant as life expectancies increase and a younger population ages. [Global Burden of Disease] WHO reports male smoking prevalence of 40% in Malaysia in 2022 [WHO Global Trends, 2024]

2. Vaping is much safer than smoking, posing only a small fraction of the risks, if any. This finding is beyond reasonable dispute. [Evidence – see PDF]

3. Vaping displaces smoking in adults who switch [Evidence – see 

PDF] and young people who would otherwise start, and there is no evidence for gateway effects. [Evidence – see PDF]

4. Vaping works because people choose it as an alternative to smoking for the use of the drug nicotine. Nicotine has been used for thousands of years, and demand will likely persist indefinitely because some people like its effects. [Evidence – see PDF]

5. Prohibitions of vaping products do not cause these products to disappear, but trigger three main effects in response: 

i) Negative behaviour change. Because vaping and smoking are substitutes, more people will smoke instead of vaping, some will relapse, and others will take up smoking instead of vaping. 

ii) Illicit trade. Examples include cross-border sales (within Malaysia or from other countries), illegal supply via criminal networks, and illegal manufacturing. 

iii) Workarounds. For example, people may manufacture or assemble their own devices or mix their own liquids, a dangerous practice. 

6. These are the “unintended consequences” of poorly designed or excessively strict policies, yet they are the main consequences, given the difference in risk between smoking and vaping. [Evidence on policy challenges – see PDF]

7. Many countries with prohibitions on e-cigarettes now have substantial illicit trade to meet the demand for nicotine products. Numerous negative consequences arise from illicit trade: 

– The products and suppliers are unregulated. The regulator is “missing in action” and consumers are exposed to risky, poorly made products supplied by unscrupulous operators. 

– Companies and products that are generally law-abiding are excluded from participation in the market and will exit, leaving the supply to operators willing to sell illegally through criminal networks. 

– The health regulator loses control, but relies on enforcement agencies to prevent the trade. But these enforcement agencies will likely have higher priorities and have never succeeded with the prevention of the illicit drug trade.

– The fact that some police representatives in Malaysia support these prohibitions should be concerning. It would be consistent with police exploiting extortion opportunities for corrupt payments from vendors. The illicit markets function through bribery, corruption and threats to border and customs officials. [Evidence of corruption in Malaysia’s illicit vape market – here]

– Illegal supply chains will sell anything to anyone of any age. Prohibitions create “gateways” to other prohibited products sold by the same criminal networks. 

– Illegal supply chains supply adolescents, but they will also recruit young people to sell products via informal channels – so measure designed to protect young people have the effect of engaging them as both consumers and suppliers. Such policies can introduce young people to criminality at an early age.

There is already a substantial illicit trade in cigarettes in Malaysia, accounting for up to 70% of the market, according to one independent estimate [Koya et al., 2024]. Therefore, the necessary infrastructure for an illicit market already exists.

8. The Control of Smoking Products for Public Health Act 2024 regulates vaping and other safer alternatives to cigarettes. However, there is a danger that some provisions will exclude the products that many people wish to buy, even if not all vaping products. In that event, it would function as a partial prohibition, leading to many of the same problems discussed above. I urge the authorities to monitor the response to this Act as its regulations are fully implemented later in 2025 and 2026. One tobacco company, BAT Malaysia, which markets the world’s highest-selling vape product, Vuse, has announced that it will withdraw this product from Malaysia as of October 2025 and focus on selling cigarettes [news report, 29 April 2025]. Businesses adapt to the incentives created by regulation, and the law may be incentivising the cigarette trade. No one should want that.

9. I have read that activist groups are urging ministers to trigger emergency provisions under Section 21 of the Act to implement a full prohibition [Evidence: news coverage]. This would be a major step backwards for Malaysia’s tobacco control agenda, though it would align with the policy priorities of international NGOs and foundations that support activism in Malaysia.

10. It is not my place to suggest what should be done to address conflicts between policy at the state and national levels. But I hope those more involved than I at both the state and national levels will recognise the danger and address the risks that prohibitions bring. 

I hope this letter will be of broader interest in Malaysia and internationally. I will publish it online and share it with relevant stakeholders. 

Please contact me if I may be of further assistance. 

Yours sincerely

Clive Bates
Director
Counterfactual Consulting Limited
London
United Kingdom