NORTH COUNTY —- A state appeals court ruled Wednesday that the way the city of Escondido is adding fluoride to its drinking water does not violate the constitutional rights of its residents and that the city’s conduct does not violate state law.
As a result, the 4th District Court of Appeal in San Diego declined to reinstate a lawsuit in which a group of Escondido residents alleged that the city’s fluoridation of the water violated their constitutional right to “bodily integrity.”
The city, which began putting fluoride in its water more than a year ago while the lawsuit was pending, is pleased with the court’s decision, Assistant City Attorney Jennifer McCain said.
Norman Blumenthal, an attorney for the residents, said he and his clients “respectfully disagree” with the appeals court and will ask the state Supreme Court to hear the case.
The Statewide Fluoridation Act requires public water systems throughout California with more than 10,000 water-service connections to fluoridate their water to promote dental health. Escondido has 25,000 service connections that serve about 130,000 people, stated an appeals court opinion issued Wednesday.
The Escondido City Council voted 3-2 in June 2001 to lift a 1999 city ban against putting certain chemicals in city water to begin the process of adding fluoride to the drinking water. A group of residents filed a lawsuit in September 2001 that challenged the city’s planned water fluoridation.
A trial of the lawsuit was scheduled for Oct. 12, 2004, but on that day, Superior Court Judge Jacqueline Stern made her decision to throw out the lawsuit, saying the residents had failed to provide a legal reason that Escondido’s water fluoridation violated their rights. The residents appealed.
Attorneys for the city and the state, which approved Escondido’s plan, argued to the appeals court that the city is complying with all state and federal laws. The substance used to fluoridate the water, hydrofluorosilic acid, is approved in the Safe Drinking Water Act and is used elsewhere in California, across the country and around the world, the state’s attorney argued.
Blumenthal argued, however, that the city is “mass medicating the entire community” with a substance that has not been approved by the federal Food and Drug Administration and that the hydrofluorosilic acid contains lead and arsenic at levels that will cause cancer.
Associate Justice Judith Haller, writing for the appeals court, stated in a 29-page opinion that laws and regulations allow “fluoridating agents” like hydrofluorosilic acid to contain contaminants like lead and arsenic as long as they comply with maximum contaminant levels and detection levels.
McCain said the city is complying fully with the law.
“We’ve had no problems with our detection levels, and everything is safe,” McCain said.
Haller wrote that the Escondido residents in the lawsuit were trying to “establish a right to public drinking water of a certain quality or, more specifically, a right to drinking water uncontaminated” with the acid, but no such right exists. State and federal constitutions do not guarantee an environment free of contaminants.
Courts across the country have “uniformly upheld the constitutionality of adding fluoride to the public water supply,” but no court has recognized a legal claim entitling citizens to drinking water more pure than what federal and state standards require, Haller wrote.
Haller also wrote that the residents involved in the case are not compelled to drink the fluoridated water and that they retain the right to choose not to drink water with hydrofluorosilic acid.
Blumenthal described the appeals court decision as a “real slippery slope” that could allow governments to put barbiturates in the water to control unruly people or amphetamines to counteract laziness and argue that residents don’t have to drink the water.
“To say that you can avoid drinking water is naive,” Blumenthal said.
Haller also wrote for the court that the residents’ challenge to the use of hydrofluorosilic acid involved a legislative process that the court did not have authority to perform. The residents should have raised their concerns and information about hydrofluorosilic acid with the state at the “administrative level” before the state approved a permit allowing the city to fluoridate the water, Haller wrote.
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