The Fluoride Action Network has won another significant victory involving our federal lawsuit against the U.S. Environmental Protection Agency (EPA) over the neurotoxicity of fluoridation chemicals.
As a result of months of legal motions, subpoenas, and extensive negotiations with the U.S. Department Of Justice (DOJ)–which is representing the EPA in court–our legal council was successful in getting the National Institutes of Health (NIH) to agree to publicly release the National Toxicology Program’s (NTP) completed multi-year systematic review of fluoride’s impact on the developing brain. After being served a subpoena by our attorneys, the National Institute for Environmental Health Sciences (NIEHS)–a branch of NIH–agreed to publicly produce their final report that was intended to be published in May of 2022. They have until March 15th to upload the documents to the NTP’s website, including the monograph, the meta-analysis, and communications between various federal agencies and the NTP about the report.
This victory will allow the public to finally see the report and accompanying documents that were blocked from being published by the leadership at US Health and Human Services (HHS) in May of 2022. Internal CDC emails discovered through Freedom Of Information Act Requests by FAN indicated that the publication of the final NTP report was blocked at the last second due to interference from the Assistant Health Secretary, Rachel Levine. One email from the CDC’s Oral Health Director from June 3rd, 2022 stated, “ASH Levine has put the report on hold until further notice.”
Our attorney, Michael Connett, summed up this victory, saying: “This represents a major reversal in the federal agencies’ position, and will ensure that the public has access to these critical documents that would have otherwise remained buried forever.”
This victory also sets the stage for the Court to move forward with scheduling the dates of the next phase of trial at the upcoming April 11th status hearing rather than adjudicating our motions to compel the NTP to hand over these documents involuntarily. The judge and our attorneys had indicated that the final stages of the trial could occur as soon as this summer or fall. These documents will play a major role in this final phase of the trial, and now the testimony on them will be accessible to the public rather than occurring behind closed doors as would have happened without this agreement.
Some Background Information
The Court has been awaiting the NTP’s monograph on fluoride’s neurotoxicity since the summer of 2020, when the judge put the case in abeyance after the first two weeks of trial and expert testimony in court, expecting the monograph to be published shortly thereafter. At the time, the NTP report had already undergone two unprecedented peer-reviews by the National Academies of Sciences, Engineering, And Medicine (NASEM), and its authors had concluded that fluoride was a “presumed developmental neurotoxicant,” with 27 out of the 29 highest quality studies showing that fluoride harmed the brains of children, and most of these studies were at levels equivalent to exposures experienced in fluoridated communities.
However, the NTP subjected their fluoride report to additional peer-reviews, beyond the already unprecedented reviews by NASEM and in contrast to previous monographs on other chemicals where there is usually just one public peer-review culminating in a public vote by a panel of scientists.
Freedom of Information Act Requests by FAN and our legal council discovered internal NTP emails confirming that the NTP considered the May 2022 monograph to be their final report. On April 28, 2022, the Director of the NTP’s Office of Policy, Review, and Outreach, Dr. Mary Wolfe,emailed the CDC’s Oral Health Division Director, stating that the NTP’s “analysis and conclusions are set,” and that the final report would be made public by “mid/late May” of 2022. Dr. Wolfe later notified the CDC that “we [the NTP] believe the current findings, as stated in the monograph, reflect the scope of our evaluation and the available scientific literature and no revision is needed.”
Before FAN even had these communications through FOIA, FAN’s legal counsel had become aware that HHS may be exerting undue pressure on NTP. Based on the information that our attorneys had obtained, we filed a motion in September asking the Court to take the case out of abeyance and open up the NTP’s final monograph to discovery so we could move forward with a second trial featuring expert testimony on it. The EPA opposed this motion, asking for continued indefinite delay of the trial until the NTP report was officially published, which they admitted might never occur. The Court ruled in favor of our motion, and our trial moved forward with the Judge asking that the NTP’s final report be made available to the Court and to Plaintiffs, but under a protective order so the public wouldn’t be able to see it.
At the most recent status hearing before the Court in January, the EPA continued to ask for indefinite delay of the trial until the NTP published the monograph themselves, however the Judge acknowledged that “justice delayed is justice denied,” ultimately ruling against them. The Court directed the plaintiffs and defendants to start the process of adjudicating whether the final NTP report and accompanying agency comments ought to be made public in preparation for the final phase of the trial.
After months of negotiations and a subpoena, our legal counsel met with NIEHS on February 3rd, and they agreed to voluntarily release the NTP monograph, as well as comments from representatives of various agencies within HHS, and the NTP’s responses to them. The Director of the NIEHS, Dr. Richard Woychik, has claimed that these agency comments led to NTP withholding the monograph from the public.
STAY TUNED! FAN will share these documents with the public as soon as they’re made available by the NTP. And don’t forget to mark your calendars for the upcoming April 11th status hearing in court, where we’re very likely to see the timeline for the final court proceedings set, bringing us a major step closer to a ruling.
Fluoride Action Network