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Malaysia: Ban on Smoking in All Eateries Comes into Effect

(Jan. 17, 2019) On January 1, 2019, a ban on smoking at all restaurants and other eateries, including open-air hawker stalls, came into effect in Malaysia. (Ban on Smoking in Malaysian Eateries Takes Effect, STRAITS TIMES (Jan. 2, 2019).) According to the Control of Tobacco Products (Amendment) Regulations 2018, which were issued in December 2018, smoking is banned in any “eating place,” which is defined as

any premises whether inside or outside building, where food is prepared, served or sold and includes —

(a)  any room or area on a ship or train where food is prepared, served or sold;

(b)  any area on a vehicle where food is prepared, served or sold, and any surrounding area within a radius of three meters from the vehicle; and

(c)  any area within a radius of three meters from any table or chair which is placed for the purposes of preparing, serving or selling food[.] (Control of Tobacco Products (Amendment) Regulations 2018, reg. 2, P.U. (A) 329, FEDERAL GOVERNMENT GAZETTE (Dec. 24, 2018).)

The principal regulations, the Control of Tobacco Products Regulations 2004, impose a fine of up to 10,000 Malaysian Ringgit (RM) (about US$2,444) and up to two years of imprisonment on anyone caught smoking in a prohibited area. (Control of Tobacco Products Regulations 2004, reg. 11, P.U. (A) 324, available on the Tobacco Control Laws website.) Proprietors and occupiers of relevant areas who fail to display a no-smoking sign may be fined up to RM3,000 (about US$733) or sentenced to up to six months of imprisonment. They must also ensure no person smokes in the area, with a fine of up to RM5,000 (about US$1,222) or up to one year of imprisonment applying. (Control of Tobacco Products Regulations 2004, reg. 12 (as amended).) However, the Ministry of Health stated that it “will give offenders a grace period of six months to comply with the ban, during which it would educate and warn restaurant owners and smokers.” (Teething Problems Reported in Enforcing Malaysia’s Smoking Ban, CHANNEL NEWS ASIA (Jan. 2, 2019).)

The Regulations are made under the Food Act 1983 and have been amended several times, including the addition of several areas where smoking is prohibited. (See Legislation by Country: Malaysia – Laws, TOBACCO CONTROL LAWS (last visited Jan. 11, 2019); List of Regulations Made Under the Food Act 1983 (since 2011), e-Federal Gazette website (last visited Jan. 11, 2019).)

Prior to the 2018 amendments, the Regulations prohibited smoking only in air-conditioned eating places, which, until amendments were made in 2017, were able to have a designated smoking area. (Control of Tobacco Products Regulations 2004, regs. 11 & 21; Control of Tobacco Products (Amendment) Regulations 2017, reg. 5, P.U. (A) 32.) When announcing plans for the extended ban in September 2018, the Deputy Health Minister stated that the changes were intended to align the law with the guidelines for the implementation of article 8 of the the World Health Organization (WHO) Framework Convention on Tobacco Control. (Sharina Ahmad, No Smoking at Outdoor Restaurants from December, Deputy Health Minister Says, MALAY MAIL (Sept. 6, 2018); WHO, Guidelines on Protection from Tobacco Smoke (2007).)

Under the Regulations, as amended, “smoking” is defined as “inhaling and expelling the smoke or vapour of any tobacco product and includes the holding of or control over any ignited, heated or vaporized tobacco product.” (Control of Tobacco Products (Amendment) (No. 2) Regulations 2015, reg. 2, P.U. (A) 304.) Therefore, vaping is included in the ban.