A California federal judge on Thursday denied the U.S. Environmental Protection Agency’s bid to toss a lawsuit from Food & Water Watch and others seeking to ban drinking-water fluoridation, rejecting the agency’s assertion the advocates didn’t provide enough information to determine if the chemical poses an unreasonable risk.

The ruling by U.S. District Judge Edward M. Chen sets the ball in motion for the court to consider the petition by Food & Water Watch Inc., Fluoride Action Network and other groups and individuals who under the Toxic Substances Control Act aim to stop the practice of fluoridating water nationwide.

“Plaintiffs are entitled to judicial review of their petition on the merits because they complied with the two minimal statutory requirements: they filed their petition with the Administrator, and they set forth the facts they believe justify a rule under Section 6(a)” of the Toxic Substances Control Act, the judge wrote.

Section 6(a) of the act requires the EPA to regulate the use of certain chemical substances. A provision of the federal law allows an individual to petition the EPA to initiate such regulation if the petitioner demonstrates a chemical substance poses an unreasonable risk of harm to health or the environment.

The advocates contend that the ingestion of fluoride poses a risk of neurotoxic harm to humans. After the EPA denied the advocates’ petition, they filed suit, requesting that the federal court rule on their health concerns.

In its motion to dismiss, the EPA argued that the advocates failed to specifically identify the chemicals at issue and provide other information required to evaluate their petition. Judge Chen said the petition sufficiently identified the chemicals and rebuffed the EPA’s assertion that a citizen petition needed to evaluate “all conditions of use” for a contested chemical.

The judge also underscored that, despite its assertion that it lacked enough information to do a proper evaluation, the EPA issued a “substantive response” to the scientific studies submitted by the advocates.

“While the scientific merits of the dispute are not material to defendant’s motion, the fact that the EPA engaged in a substantive merits analysis despite the alleged procedural flaw in the petition is noteworthy,” the judge said.

Plaintiffs to the suit also include the American Academy of Environmental Medicine, International Academy of Oral Medicine & Toxicology, Moms Against Fluoridation and individual parents suing on behalf of themselves and their minor children.

In their complaint, they allege that fluoridation chemicals — hydrofluorosilicic acid, sodium silicofluoride and sodium fluoride —  have been added to public water supplies since the 1940s, purportedly to reduce tooth decay, but argue that current research shows that fluoride’s “primary benefit comes from topical application” and therefore ingestion of the chemical serves no purpose and comes with health risks. Water fluoridation has been rejected or stopped in the vast majority of European countries, the advocates claim. Further, fluoride chemicals pose risks to the brain, including cognitive impairments and neurotoxicity, the suit states.

In its rejection of the advocates’ petition, the EPA stated that after “careful consideration,” the agency concluded that “the petition has not set forth a scientifically defensible basis to conclude that any persons have suffered neurotoxic harm as a result of exposure to fluoride in the U.S. through the purposeful addition of fluoridation chemicals to drinking water or otherwise from fluoride exposure in the U.S.”

Counsel and press representatives for the EPA did not immediately respond to requests Thursday for comment on the ruling.

A representative for Food & Water Watch, Scott Edwards, said in an email Thursday that the organization is pleased that the court rejected the “EPA’s improper effort to put up unreasonable roadblocks for citizens who are fighting to protect public health and drinking water.”

The court can now turn to the merits of the petition, Edwards said, which argues that the EPA has not properly assessed the risk of adding fluoridation chemicals to drinking water.

“We look forward to moving to the next phase of litigation in this matter where we can put before the Court all the evidence that the federal government is allowing fluoridation of our drinking water with total disregard for the detrimental effects it is having on our communities and our children,” Edwards said.

Food & Water Watch and other plaintiffs are represented by Michael P. Connett.

The EPA is represented by Norman L. Rave Jr. of the U.S. Department of Justice.

The case is Food & Water Watch Inc. et al. v. EPA et al., case number 3:17-cv-02162, in the U.S. District Court for the Northern District of California.

–Editing by Breda Lund

*Original article online at https://www.law360.com/articles/997525/epa-can-t-ditch-enviro-s-fluoride-fight-calif-judge-says