The Crown was “sneaky and self-serving” in the way it regulated in an attempt to cut off an avenue of challenge for anti-fluoridation campaigners, the Court of Appeal has been told.
In the court on Wednesday, lawyer Lisa Hansen said New Health NZ had significant concerns about the way a regulation was made exempting fluoridation chemicals from being “medicines”.
The regulation came about after a judge suggested it, even though he found that, when the chemicals were added to water in the recommended quantities, it was not a medicine.
Hansen said the Crown had been sneaky and self-serving in making the regulation. It was peremptory, perfunctory, and lacked transparency.
The Crown passed the regulation to deprive New Health of its appeal rights, Hansen said, and the Ministry of Health had been wrong to assure the public for the past 30 years that it was not a medicine.
As a result another case, this time challenging the validity of the regulation, was filed in the High Court. It is not expected to be heard until August or September.
The Court of Appeal judges were told the grounds were likely to include one claiming that interested parties were not properly consulted about the change.
But in the meantime New Health, an interest group set up to promote the “best interests and health freedoms of consumers”, appealed against the ruling that the fluoridation chemicals were not a medicine under the Medicines Act.
The Crown wanted the appeal dismissed on the ground there was now a valid regulation so the issue was moot.
The chemicals did not have to first be a medicine for a regulation to be made to put the matter beyond doubt, Crown lawyer Jane Foster said.
The appeal was to be heard on Wednesday but the Court of Appeal adjourned it, saying the issue was currently moot. Earlier Justice Tony Randerson said the regulation covering the chemicals had to be treated as valid unless it was set aside.
The pending case about the validity of the regulation would likely include the status of the chemicals. He proposed adjourning the appeal until the other case was heard so that all the issues could be dealt with in one appeal “rather than picking off bits here and there”, he said.
Fluoride is added to water to reduce and prevent tooth decay but opponents saying adding it to a public water supply is uncontrolled “mass medicating” when fluoride tablets are a pharmacy-only substance given in a controlled dose.