ESCONDIDO – A La Jolla attorney yesterday appealed a judge’s ruling against an effort to stop the city from adding fluoride to its water supply.
The case revolves around the question of whether the city has the right to use a fluoride additive – called hydrofluorosilic acid – that contains minute amounts of arsenic and lead.
In October, Superior Court Judge Jacqueline M. Stern dismissed the 3-year-old lawsuit, concluding that the city didn’t violate the constitutional rights of residents by using the additive.
Norm Blumenthal, an attorney representing a small group of Escondido residents in the lawsuit, said Stern erred because “bodily integrity” long has been held as a fundamental right.
“This is not about fluoride. This is not about a toxic-free environment. It’s not about any of those things,” Blumenthal said. “This is about the selection of (hydrofluorosilic acid) – which has enough arsenic in it to cause cancer in 1 in 1,000 people – to be used as the agent to fluoridate. Is that unconstitutional?”
The brief, which names the city of Escondido as the defendant, was filed in the 4th District Court of Appeal.
City officials argue that arsenic levels in Escondido’s water, even with the use of the additive, would be 1/100th to 1/1,000th the 2006 federal standard of no more than 10 parts per billion for drinking water. The city also maintains that hundreds of U.S. cities use the same additive.
Opponents say that even minute levels of arsenic, which is found naturally in most groundwater, could result in an increase in cancer.
Escondido began fluoridating its water Aug. 30 and became the first city or water district in the county to begin the practice.
A 1996 state law, which has not been widely enforced, requires larger cities to begin fluoridation when funds become available. The Escondido City Council accepted a $321,000 grant in 2001 to buy equipment for fluoridation.
City Attorney Jeffrey Epp said yesterday the city simply was following the state’s mandate and the lower court agreed.
Blumenthal said the lawsuit doesn’t seek to block fluoride altogether, just the use of hydrofluorosilic acid.
About 75 percent of Escondido residents receive fluoridated water. Some residents are served by the Rincon del Diablo water district, which is not yet fluoridating. About 1,200 Rincon customers in southeast Escondido receive fluoridated city water.
Owen Morrison, one of the plaintiffs, said the case is filled with “Erin Brockovich material,” referring to the legal assistant who took on a power company accused of polluting the water supply in Hinkley. The story was made into a movie starring Julia Roberts.
Morrison also questioned what fluoride supporters and the court system are trying to hide.
“If it’s not politically motivated, why would it be so detrimental to have a jury decide an issue like this?” he said. “Either the arsenic is there or it isn’t, and science can determine that.”
Fluoridation proponents, including nearly all public health groups, contend the practice has proven effective in fighting tooth decay and has been used in much of the country for decades.
If the lawsuit fails, it is unclear if a new City Council would have enough support to order a stop to fluoridation. Council members Ed Gallo and Marie Waldron oppose fluoridation, while Councilman Ron Newman and Mayor Lori Holt Pfeiler support it. Councilman Sam Abed, who was elected in November, has yet to take a public stand on the issue.