VISTA – A judge decided Monday morning to stick to her earlier leanings and dismiss a suit brought by a group of Escondido residents fighting a city decision to put fluoride in tap water.
The suit, from a handful of Escondido residents, argued that the fluoride additive the city uses, called hydrofluorosilic acid, is dangerous because it contains fluoride, arsenic and lead. They had argued that putting it in the tap water trounced on what they said were constitutional rights to “bodily integrity.”
Stern’s ruling was not unexpected; last week she released a tentative ruling that she was leaning toward tossing the three-year-old suit. Her final ruling to dismiss the suit came on the same day that jury selection for the trial was slated to begin.
In tossing the lawsuit, Superior Court Judge Jacqueline Stern said Monday that plaintiffs had failed to give a legal reason —- “And I emphasize the word legal,” Stern said —- that Escondido’s decision to add fluoride in tap water is a violation of a constitutional right of the plaintiffs.
Jennifer McCain, assistant city attorney for Escondido, said the city was “confident all along” that it would prevail.
Norm Blumenthal, one of the attorneys for the plaintiffs, said in and out of court Monday morning that he plans to appeal the ruling.
“As a result of this ruling,” Blumenthal told the judge, “my clients will be denied their day in court.”
A vociferous Blumenthal told the judge Monday that her position was “cold, uncaring and callous,” and cited her tentative ruling, in which Stern wrote that residents had the option of turning off their water service, boiling the water or installing filters.
“Poor people don’t have that luxury,” Blumenthal said.
Court documents filed by the plaintiffs claimed that a national research council has found that the arsenic added to the water supply could result in lung and bladder cancer.
Attorneys for the defendants —- the city of Escondido and the state Department of Health Services, which approved the city’s fluoridation plan —- argued that there was no foundation for the lawsuit. There is no constitutional right to public drinking water, they argued, and thus no constitutional right that the water be free of toxins.
Gregory Cribbs, an attorney representing the state, told the judge Monday that the plaintiffs were ignoring “the elephant in the room” because they were not acknowledging the fact that hydrofluorosilic acid the city uses has the certification of the National Sanitation Foundation.
The National Sanitation Foundation is an independent, not-for-profit organization that certifies products internationally. The standards the group uses mirror national standards, Stan Hazan, the company’s senior director of regulatory affairs, said in a telephone interview Monday afternoon.
The standards specify what products are allowed and the level of contaminants they can contain, said Hazen, who is based in Michigan.
About a dozen cities throughout the state use hydrofluorosilic acid to fluoridate tap water, including Los Angeles and San Francisco, according to the California Department of Health Services.
The suit was first filed in September 2001, three months after the Escondido City Council narrowly voted to lift a self-imposed ban on adding certain chemicals, including fluoride, to the city’s tap water.
Even though the suit was pending, the city moved ahead with its plans to fluoridate, and has been adding fluoride to its tap water for about a month. State law mandates that certain agencies add fluoride to its tap water to protect public dental health; Escondido qualifies as one of the agencies required to do so.
The executive director of The San Diego Fluoridation Coalition, Eleanor Nadler, applauded the judge’s ruling after court. Nadler, who sat in on the court hearing Monday, said she is pleased to see Escondido adding fluoride to the water, and that she believes hydrofluorosilic acid is safe.