SAN DIEGO —- Almost a year after the city of Escondido began adding fluoride to its drinking water, an attorney for a group of residents urged a state appeals court Wednesday to reinstate a lawsuit that claims the city’s fluoridation is violating their constitutional rights to “bodily integrity.”
Attorneys for the city and the state, which requires fluoridation in some cities and approved Escondido’s plan, countered that Escondido is complying with all federal and state laws and the dispute is about safe drinking water, not constitutional rights.
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.
A divided 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.
In the tentative decision that Stern made final, she wrote that the residents were “in essence, claiming a right to safe drinking water and a toxic-free environment,” neither of which has been recognized as a fundamental constitutional right.
Norman Blumenthal, the residents’ attorney, told the appeals court Wednesday that the city is violating the residents’ constitutional right to “bodily integrity” because it is “mass medicating the entire community” with a substance that has not been approved by the federal Food and Drug Administration.
The substance the city is using to fluoridate the water is industrial-grade hydrofluorosilic acid that contains lead and arsenic at levels that will cause cancer in 1 of every 1,000 people, Blumenthal argued.
The city’s attorney, Michael Hogan, said the city is required to use a substance approved by the state Department of Health Services to add fluoride to the water.
Deputy Attorney General Karen Fried said in court Wednesday that hydrofluorosilic acid is “an approved drinking water additive” in the Safe Drinking Water Act and is used in more than half the cities of California and elsewhere in the United States and around the world.
Fried also argued that state law does not require that arsenic and lead not be present in the water, but instead sets maximum contaminant levels and detection level limits.
“The city’s plan completely complies with MCL’s and detection levels,” Fried argued. “The city’s choice of HFSA complies with all state and federal laws.”
Presiding Justice Judith McConnell and Associate Justices Judith Haller and Joan Irion of the 4th District Court of Appeal in San Diego have 90 days in which to decide whether to uphold Stern’s decision to throw out the lawsuit before trial or reverse that ruling.
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