A three-justice panel of the United States Court of Appeals for the Ninth Circuit has decided to send our case back to the U.S. District Court for the Northern District of California, where Judge Edward Chen will be required to make a second ruling based only on scientific evidence and testimony presented prior to August 2020.
The decision by the Court of Appeals was based solely on interpretations of technical procedural steps taken during the litigation and did not dispute the science showing harm or the lower court’s 2024 determination that fluoridation poses an unreasonable risk to human health due to the significant side-effects on fetal and infant brain development. It’s also important to note that while this isn’t the immediate outcome FAN wanted, the Appellate Court did not agree with the EPA’s request to reverse the lower court’s decision. The Court also didn’t agree with 2 of the 3 objections the EPA had as part of their appeal. FAN hasn’t lost and the EPA hasn’t won. In short, the case is still ongoing and our legal team is looking at all scenarios and all possible next steps available. But for now, the decision means that Judge Chen will have to write a new ruling based exclusively on the evidence presented during the first phase of the trial.
In a memorandum issued last night, the Court of Appeals vacated–or set aside–the lower court’s ruling, arguing that Judge Chen didn’t follow the “party presentation principle” that limits how active judges can be in allowing the introduction of new evidence and/or legal issues into proceedings. The Court wrote that Chen violated this principle with his 2020 decision to put the case in abeyance after the conclusion of the first bench trial to wait for the publication of the National Toxicology Program’s (NTP) review of fluoride and developmental neurotoxicity so that it could be included as evidence.
While Judge Chen chose to extend the proceedings to incorporate the most recent and robust scientific findings, the appellate court characterized his due diligence as a form of judicial overreach simply because both the plaintiffs and defendant expressed in 2020 that they would prefer not to delay the case.
Michael Connett, our legal counsel, told The Defender that this disappointing decision by the Court of Appeals was “a very expansive and unprecedented application of the party presentation principle.” He said that to date, “this principle has really only been applied to situations where judges raise new legal issues, not where judges use procedural mechanisms to resolve the issues presented.” He added that “The Court has instructed Judge Chen to travel back in time to 2020 and make this ruling based on a stale factual record. Their directive to ignore years’ worth of evidence on fluoride’s dangers runs counter to the intent of the Toxic Substances Control Act (TSCA).”
As was described in the lower court’s ruling in our favor, the scope of the harm occurring throughout the US on a daily basis due to fluoridation is significant, and the most disappointing aspect of this legal decision is that our eventual success will continue to be delayed, causing further unnecessary harm to the public:
“The size of the affected population is vast. Approximately 200 million Americans have fluoride intentionally added to their drinking water at a concentration of 0.7 mg/L…. Approximately two million pregnant women, and over 300,000 exclusively formula-fed babies are exposed to fluoridated water.” [p. 76]
Appeal Background and Case Timeline
For those looking for more details about the EPA’s appeal of the lower court’s ruling, you can read the EPA’s appeal briefhere. You can click here to read FAN’s brief in response to the EPA’s appeal. An amicus brief in support of the lower court’s original ruling in our favor was also filed by the National Resources Defense Council (NRDC). Click here to read it.
If you missed the March 3rd oral arguments made by both parties before the Court of Appeals’ 3-judge panel, you canwatch the 40-minute proceeding here.
To learn more about the first phase of the trial, which occurred 6 years ago, please visit our EPA lawsuit webpage. You can also read Paul Connett’s daily commentary of each day’s proceedings. Those that do review these pages will hopefully see that there is still very much reason to remain optimistic, since the evidence and expert testimony presented was incredibly strong in our favor well before the NTP report confirmed our claims.
Please stay tuned for further updates as they happen, and thank you again for your continued support. We promised our supporters that we would fight to the end, no matter how long it took, and we’re going to fulfill that promise.
Sincerely,
Stuart Cooper
Executive Director