Fluoride Action Network

Court weighs fluoridation suit

Source: The News Tribune | September 19th, 2003 | by Eijiro Kawada

From police power to tooth decay, Washington State Supreme Court justices pressed lawyers with questions Thursday as they waded into a debate over fluoridated water in Pierce County.

At the center of the dispute is an order by the Tacoma-Pierce County Health Board, which demands that 14 local water purveyors put fluoride in water to prevent cavities among children. A lower court sided with the health board earlier this year.

While it will be several months before the Supreme Court issues a ruling, the judges asked Thursday about what constitutes a public health hazard and how far authorities can go to prevent one.

Why should the health board be allowed to use its police power when “there’s no claim that drinking water is at risk?” asked Justice Richard Sanders.

“These are mandatory duties that are imposed on county boards of health,” said Paul Lawrence, the attorney representing the health board. “This is the least expensive, most effective way to combat that disease.”

Sanders responded testily: “Is tooth decay a dangerous disease?”

“It is,” the attorney replied.

“Then how do you catch it?” Sanders asked.

Six of the affected water providers were in court Thursday to appeal a Pierce County Superior Court judge’s decision from earlier this year. That judge had affirmed the health board’s October 2002 order, acknowledging the board’s broad power to regulate and supervise public health in the county.

Citing urgency, the water districts skipped the Court of Appeals and went straight to the Supreme Court.

During the 30 minutes that each side had to argue its case Thursday, justices peppered them with mostly constitutional questions. But they also asked both sides the same things that local proponents and opponents of fluoride have argued for the past few years.

“Is (fluoridation) really a medication?” asked Justice Bobbe Bridge. “Many things that combat disease are not medication.”

Plaintiffs answered yes, citing medical and English dictionaries.

In its order last year, the board told water purveyors serving more than 5,000 customers to fluoridate their water. A total of 238,000 people are affected throughout the county, including those in Lakewood, Puyallup, Sumner, Edgewood, Bonney Lake, Milton, Steilacoom, Parkland and Spanaway.

Some water suppliers followed the order, while others opted to challenge it.

The key issues that the plaintiffs are arguing are:

* Whether a water district has exclusive jurisdiction over its water according to state law.

* Whether the health board’s order would be a forced medication and is illegal.

* Whether forcing private water companies to pay the costs associated with fluoridating their water constitutes an unlawful tax.

The mandate from the Board of Health steps over the line by “giving orders to independently elected officials” and by “repealing the authority of an independent agency,” argued Michael Ruark, the lawyer representing the Lakewood Water District.

The water suppliers have insisted on a public vote before adding fluoride to the water. They fear lawsuits from residents if they obey the health board’s order.

A group of Pierce County residents had begun an initiative drive earlier this year to force the issue on the ballot. But the group has halted the effort until the Supreme Court answers the constitutional questions about the health board’s authority, said Marianne Lincoln, a Spanaway activist who began the petition drive.

Customers of the six water providers still in the lawsuit probably won’t see fluoride in their drinking water by the Jan. 1, 2004, deadline. The health department had told suppliers to sign contracts by Jan. 2 this year, agreeing to fluoridate or face $250-a-day fines. But that penalty has been suspended until the court case is resolved.

About 300,000 residents in Tacoma, Fircrest and the local military bases already receive fluoridated drinking water.