THE U.S. LAWSUIT AGAINST WATER FLUORIDATION

Food and Water Watch, et al.
vs
Environmental Protection Agency

Lawsuit.PNG

In the Fall of 2016, the Fluoride Action Network (FAN), under provisions in the Toxic Substances Control Act (TSCA), petitioned the U.S. Environmental Protection Agency (EPA) to prohibit the deliberate addition of fluoridating chemicals to the public drinking water, because they posed an unacceptable risk to the brain. Hard copies of approximately 300 animal and human studies were offered in support of this petition. In 2017, the EPA rejected the petition. FAN, along with several other groups and individuals, appealed this decision in Federal Court (the 9th District, located in San Francisco). The case was heard (via Zoom) in June 2020 over a period of two weeks, with Judge Edward Chen presiding.
 

Even though the weight of evidence on fluoride’s ability to harm the human brain was very convincing, FAN’s case was greatly bolstered in September 2017, when the first of several U.S. Government-funded mother-offspring studies was published (Bashash, 2017). This was the first major study that had examined exposure to fluoride during pregnancy (i.e. exposure at the fetal change). The results were very striking and could not have been more helpful to FAN’s case. Bashash found a strong relationship between the level of fluoride exposure to pregnant women (as measured in their urine) and a lowered IQ in their offspring. The studies were very rigorous (confounding variables were controlled for and all measurements were made at the individual level). Moreover, the mothers’ exposures were at levels commonly experienced in artificially fluoridated communities in Canada and the USA. FAN’s case was furthered bolstered by three other studies published before the trial began (Bashash, 2018; Green 2019 and Till 2020).

In the June trial, FAN was able to produce expert testimony of two of the key authors of the mother-child IQ studies (Bruce Lanphear (Green 2019 and Till 2020) and Howard Hu (Bashash, 2017). They also had expert testimony from two risk assessment specialists, Kathleen Thiessen, PhD, a member of the National Research Council that researched fluoride toxicity in 2006 (NRC 2006) and Philippe Grandjean, a key author of the Harvard meta-analysis of IQ studies published in 2012, and the lead author for the Benchmark Dose (BMD) analysis (subsequently published in 2021). 

 

The big surprise was the that EPA chose not to use any of its own fluoride experts in defending their position but instead hired the company Exponent to do so. Exponent is renowned for defending a whole range of very toxic products and by-products for the chemical industry (Dow, Dupont, Monsanto etc.) which have included: dioxins, PCBs, glyphosate and PFAs. 
 

Even though the Exponent lawyers did their best to muddy the waters by arguing that FAN had failed to perform a state of the art systematic review of the literature before declaring that fluoride was a neurotoxic hazard, even they had to conceded in cross-examination, that the  National Institute of Environmental Health Science (NIEHS)-funded studies mentioned above, were the most important and rigorous studies conducted to date.
 

The Judge surprised those watching the case via zoom, when he interrupted the EPAs lawyer in her closing argument when she was trying to establish that fluoride was not a neurotoxic hazard. The judge opined that (1) fluoride was clearly a neurotoxic hazard citing, what both parties had agreed were the strongest studies conducted to date; and (2) argued that the EPA was demanding a standard of proof that even the best epidemiological studies cannot provide: namely, cause and effect. 
 

To the plaintiff’s ears, this sounded like a victory, however the judge has postponed his final verdict until he has seen two more documents: the National Toxicology Program's (NTP) systematic  review of Fluoride’s Neurotoxicity (requested by FAN in 2016) and a published version of the BMD analysis (risk assessment to determine a safe reference dose for fluoride based upon the pooled data in two of the mother-child studies (Bashash, 2017  and Green, 2019). The BMD analysis was published in June, but we are still waiting for the final report from the NTP. The judge has indicated that when the studies are in his hand (and possibly other mother-child studies being conducted), that he would probably entertain some more expert testimony from both sides on these published findings.
 

To date all attempts by the EPA to throw out the plaintiff’s case on the issue of standing have failed as well as the EPA's argument that FAN should refile their petition, because key evidence has been published since the original petition was filed in 2016. Throughout the proceedings, the judge made it clear that he is interested in what the best science has shown, rather than EPA's arcane arguments about what constitutes  systematic reviews. Hence he insists on waiting for the NTP’s own review, before he makes his ruling. The National Toxicology Program (NTP) Review is expected before the end of this year and the final ruling possibly in early 2022.