GREAT NEWS!  The U.S. District Court for the Northern District of California has ruled in our favor for the fifth time since the FAN-funded TSCA lawsuit was filed in November of 2016.

On September 19^th, the U.S. Environmental Protection Agency (EPA) petitioned the court to delay the trial another 65 days after it had already been delayed six-months by the most recent shutdown of the federal government.  The EPA argued that a “new development,” along with their desire to add an additional expert witness required extending the discovery phase before the trial, which thankfully remains scheduled to start on February 3^rd.

The new development EPA referenced is the completion of the National Toxicology Program’s draft review of fluoride’s neurodevelopmental effects on humans.  According to the EPA, the review “has been submitted to the National Academies of Sciences (NAS) for peer review,” and is expected to be released to the public around the first week in November.  The NTP released their fluoride/neurotoxicity review on animals in 2016.

In response to the EPA’s request for a delay of the trial, FAN’s attorneys filed a reply brief arguing that the EPA had just agreed to the existing schedule one week prior to making the motion for delay.  They also argued that:

EPA has been aware of the NTP’s … monograph for the entirety of this litigation. EPA is not only a member of NTP’s Executive Committee but provided comments to the NTP about the review prior to the review’s commencement in late 2016. At no point, however, during the 2+ years of this litigation has EPA expressed any concern that the NTP review could affect the scheduling of this case.

Additionally, they noted that the pending NTP monograph is only a draft, and “the release of a draft review provides no justification for derailing the entire schedule, including the trial date. Federal courts have long recognized the reduced trustworthiness of draft government reports, holding them inadmissible under Federal Rule of Evidence 803.”

After consideration of these arguments, this week the Court made its decision, denying the EPA’s request, and maintaining the current trial timeline.  Not only does the victory keep the EPA from increasing the cost of the lawsuit by adding more evidence to examine and another expert witness to depose at the last minute, it also adds to the momentum our legal team has gained from four previous legal victories:

• December 2017: The Court denied the EPA’s motion to dismiss the case.

• February 2017: The Court denied a request by the EPA to prohibit our attorneys from obtaining internal documents and our experts from using recently published studies on prenatal fluoride and IQ.
• October 2018: The EPA objected to sharing internal documents — or allowing their employees to be deposed — about EPA’s safety standards for fluoride. The Court ruled the EPA had to share this internal information.
• April 2019: The Court compelled EPA to both produce further documents and produce three more of its scientists for deposition.

Sincerely,

Stuart Cooper
Campaign Director
Fluoride Action Network