PORT ANGELES — Those opposed to adding fluoride to city water supplies on the North Olympic Peninsula have once again petitioned the state Supreme Court to clarify whether fluoridated city water supplies should be considered drugs.
If so, those behind the petition claim cities would need approval from the Food and Drug Administration, or FDA, before adding fluoride to their water.
“We’re asking the [Supreme Court] to find that the bulk fluoride products used by the cities of Port Angeles and Forks and the fluoridated waters they make with those products are drugs,” said Tacoma-based attorney Gerald Steel, who is representing the petitioners.
The petition, filed on behalf of Protect the Peninsula’s Future and Clallam County Citizens for Safe Drinking Water, comes after a panel of three Division II Court of Appeals judges upheld last month a lower court decision that municipal water containing fluoride is not a drug and does not need FDA approval.
The petitioners, along with retired Sequim physician Eloise Kailin, filed suit against the cities of Port Angeles and Forks in Clallam County Superior Court in May 2011 in an attempt to stop the cities’ practice of adding fluoride to their water supplies.
The Superior Court dismissed the case, saying FDA approval was not needed for adding fluoride to public water supplies.
Earlier denial of review
The plaintiffs petitioned the state Supreme Court to hear the case, which the high court denied.
This sent the case to the Division II Court of Appeals, which upheld the earlier Superior Court ruling.
Following the Court of Appeals’ June decision, Steel filed a fresh petition last Friday for the state Supreme Court to rule on the matter of whether fluoridated water supplies should be considered drugs.
Steel said it could take as long as seven months for the state Supreme Court judges to decide whether they will review the case.
“If they decide to hear [the case], it could take a year and a half before they have a decision,” Steel said.
There’s no guarantee the high court will take up the case for review, Steel said, adding that a Supreme Court refusal to review the case would mean the appeals court decision stands.
Last meaningful step
“If [the Supreme Court doesn’t] accept review [of the case], then that’s the last meaningful step for this lawsuit,” Steel said.
This lawsuit is the third opponents of fluoridated city water supplies have filed against the city of Port Angeles, which began adding fluoride to its water in 2006.
The case is the first the plaintiffs have filed against the city of Forks, which has been fluoridating its water supply for decades.
In requesting the state Supreme Court review the case, Steel said his clients are asking the court to clarify or overrule Kaul v. City of Chehalis, a 5-4 1954 Supreme Court ruling that dismissed a lawsuit against the city brought by a Chehalis resident opposed to the city fluoridating its water supply.
The high court upheld a trial court decision dismissing the Kaul lawsuit, Steel said.
Challenge not argued
The Supreme Court, however, did not address Kaul’s challenge to the trial court’s decision that the city of Chehalis was not selling drugs in providing fluoridated water because this challenge was left unargued by the Kaul plaintiffs, Steel explained.
Steel said he hopes the evidence calling out the potential negative health affects, such as brittle bones and teeth spotting, of prolonged fluoride exposure his plaintiffs presented in the most recent petition to the state Supreme Court will compel it to take up the case.
“We have argued the heck out of it,” Steel said.
The Supreme Court will decide to review the case based on whether the judges think the matter is of significant public interest, Steel added.
“We think it is of significant public interest because half the people in the state are taking these substances [fluoridated water], and we think the arguments are clear that they are drugs,” Steel said.
Advocates of fluoridated water have long promoted the use of the substance to fight tooth decay.