Fluoride Action Network

San Diego: City Ordinance Banning Fluoridation of Water Supply Preempted by Statute

Source: Metropolitan News-Enterprise | April 24th, 2018

State law precludes the City of San Diego from abiding by its ordinance barring the addition of fluoride to the public water supply, Div. One of the Fourth District Court of Appeal held yesterday, declining to repudiate a decision to that effect by another district.

David Kennedy—a dentist who, departing from the view held by most of his colleagues, opposes fluoridation—urged the appeals court not to follow the Sixth District’s 2005 opinion in City of Watsonville v. State Dept. of Health Services, and instead hold that San Diego, as a chartered city, need not adhere to the state statutory mandate.

As a sister Court of Appeal, we are not bound by Watsonville,” Justice Judith Haller wrote in an unpublished opinion. “But we choose to follow its holding because we find its analysis persuasive.”

San Diego Ordinance

A 1954 San Diego ordinance, Municipal Code § 67.0101, provides:

“It is…unlawful for any person, including the City of San Diego and for its elective or appointed officers or employees, to use in or add to the water supply of this City any Fluorine, Sodium Fluoride, Sodium Silicon Fluoride or any Fluoride compound, or to treat such water supply with aforesaid chemicals before delivery to the consumers thereof.”

However, Heath & Safety Code §116409(b) declares:

“It is the intent of the Legislature in enacting this article to preempt local government regulations, ordinances, and initiatives that prohibit or restrict the fluoridation of drinking water by public water systems with 10,000 or more service connections….”

The command is conditioned on availability of local funding.

High Court Precedent

Haller pointed to the California Supreme Court’s 2012 decision in State Building & Construction Trades Council of California v. City of Vista where the high courts sets forth the test for determining if a statute overrides an ordinance of a chartered city. That opinion says:

“First, a court must determine whether the city ordinance at issue regulates an activity that can be characterized as a ‘municipal affair.’…Second, the court ‘must satisfy itself that the case presents an actual conflict between [local and state law].’…Third, the court must decide whether the state law addresses a matter of ‘statewide concern.’…[Fourth], the court must determine whether the law is ‘reasonably related to…resolution’ of that concern…and ‘narrowly tailored’ to avoid unnecessary interference in local governance….”

Haller expressed agreement with the court in Watsonville that application of the Supreme Court’s test compels the conclusion that cities may not forbid fluoridation.

“Under the California Supreme Court’s four-part test for analyzing the relationship between a city ordinance and a state law, we determine state fluoridation law preempts Municipal Code section 67.0101, and therefore hold the court properly sustained the City’s demurrer to Kennedy’s cause of action seeking to prohibit the City’s fluoridation program.”

Kennedy had sought a writ of mandate, but San Diego Superior Court Randa Trapp sustained a demurrer without leave to amend, and a judgment of dismissal followed.

The case is Kennedy v. City of San Diego, D072337.

Fluoridation was a topic of controversy in the mid-1950s to mid-1960s, with some right wing groups insisting that it was a communist plot. The dental profession eventually won out based on claims that fluoride promotes healthy teeth.

However, serious medical concerns have been raised based on recent scientific studies. Excessive levels of fluoride have been tied to underactive thyroids and to neurodevelopmental disabilities in children.

*Original article online at http://www.metnews.com/articles/2018/fluoridation042418.htm