As anti-fluoride push grows, ruling from unlikely judge could be key

Why would the new administration want to stop adding fluoride to tap water? The Centers for Disease Control in 2015 called it, opens new tab “one of the 10 greatest public health achievements of the 20th century,” and the American Dental Association says it reduces tooth decay by more than 25% in adults and children.

Surely no one, right wing or left, is pro-tooth decay?

But as a recent decision by an Obama-appointed federal judge siding against the Environmental Protection Agency makes clear, fluoride safety is more nuanced than that.

People tend to dismiss concerns about fluoridation as “loony tunes,” Siri & Glimstad partner Michael Connett, who represents the trio of advocacy groups including Food & Water Watch that challenged the EPA over fluoride safety, told me. “There’s a knee-jerk reaction to reject the idea” that it could be hazardous.

Call it the Dr. Strangelove effect — the 1964 dark comedy where an unhinged general starts a nuclear war against the Soviet Union over fluoridated water, “the most monstrously conceived and dangerous communist plot we’ve ever had to face.”

But what if the nutty general was right, at least in part?

It strikes me that one of the great virtues of an independent judiciary is in allowing a judge to do what regular people cannot: weigh first-hand expert testimony and evidence from both sides zealously represented by counsel, then render an unbiased decision.

Why Chen, a U.C. Berkeley School of Law grad and former ACLU staff attorney, in his 80-page opinion, determined that fluoridation could be injurious to public health — not that it definitely is, but that it presents significant risk — merits a closer look.

As is, the federal government doesn’t directly control whether local water is fluoridated. That’s up to municipal officials, and indeed, a few cities including Portland, Oregon, do not add the mineral to their water supply. (For that matter, almost no European countries fluoridate their water.)

In 2017, Food & Water Watch and others sued the EPA, invoking a provision of the Toxic Substances Control Act that empowers the agency to take action if it determines that a chemical poses “an unreasonable risk of injury to health.”

According to the complaint, when fluoridation began in the 1940s, it was premised on the belief that the mineral needed to be swallowed to prevent tooth decay, hence adding it to water.

Dental researchers, including the CDC’s oral health division, now agree that fluoride’s primary benefit comes from topical application, such as toothpaste.

The plaintiffs aren’t suggesting that we ban fluoride in toothpaste. But they argue that ingesting it in water carries unacceptable risks, including tooth discoloration caused by dental fluorosis and a rare but crippling bone disease.

The litigation, however, focused almost entirely on fluoride’s impact on the developing brain.

Chen in his decision dove deeply into the studies (pages of the decision are filled with tables of data and sentences like “The joint BMC was found to be 0.45 mg/l (BMCL, 0.28 mg/l”) to look at the association between higher fluoride exposure and reduced IQ in children.

The drops in intelligence ranged from about 2 to 8 points. That matters. Even a one- or two-point decrement is linked to reduced educational attainment, employment status, productivity and earned wages, Chen wrote, calling IQ reduction “a serious community health issue.”

While Chen said EPA’s lawyers from the U.S. Department of Justice pointed to “technicalities at various steps of the risk evaluation” to argue that fluoride does not present an unreasonable risk, and that the “precise relationship” between fluoride dosage and response isn’t entirely clear, the judge said those “arguments are not persuasive.”

Regardless of where you draw the line between risky and safe, the current level — The U.S. Public Health Service suggests 0.7 mg/L is optimal — cuts it too close, Chen found.

Under “even the most conservative estimates,” he wrote, “there is not enough of a margin between the accepted hazard level and the actual human exposure levels to find that fluoride is safe.”

He ordered the EPA to take action, though he didn’t specify what the agency should do. Options range from issuing a warning to lowering the allowable limit for fluoride in drinking water to banning it outright.

If RFK Jr. is hand-picking officials in the new administration who’ll have the ability to make that call, fluoride may be on the way out.