Fluoride Action Network

Supreme Court: City water fluoridation illegal

Source: The Union Leader | Union Leader Staff
Posted on October 1st, 2003

Manchester is violating state law by putting fluoride in the water it pipes to customers in surrounding towns, the state Supreme Court ruled yesterday.

The court gave the city until June 30, 2005, to stop fluoridating the municipal water supply — unless the Legislature amends current law before then.

Manchester voters passed a fluoride referendum in 1999 by a 656-vote margin. In December 2000, the city began putting fluoride, a substance that reduces tooth decay, in the municipal water supply.

People in Auburn, Bedford, Goffstown, Hooksett, Derry and Londonderry who drink city water did not vote on the fluoride question.

Justice Joseph P. Nadeau, who wrote yesterday’s decision, said the law requires all people “using” the water to vote on whether they want it fluoridated.

The decision affirms the ruling by Hillsborough County Superior Court Judge Robert J. Lynn who said last year that “ . . . there must be a hearing and vote in each of said municipalities.”

The city had argued that the law required a vote only by Manchester residents. Lynn had ordered the city to cease fluoridating the water by next April. The Supreme Court decision gives Manchester an extra year.

Either the law will have to be changed by then, the towns that receive city water will have to pass a fluoride referendum, or Manchester will have to stop fluoridating its water.

The Supreme Court decision raises questions for water utilities in other New Hampshire cities, such as Dover, Portsmouth and Laconia, that sell fluoridated water to outlying communities.

Some water officials said yesterday they will be talking with legal counsel to decide what to do.

About 20 residents of Manchester and surrounding towns were nominal plaintiffs in the lawsuit. It was strongly supported by the New Hampshire Pure Water Coalition.

Attorney Jed Z. Callen, who litigated the case, said legislators will face constitutional problems if they try to amend the law so that people in outlying towns don’t get to vote on fluoridation.

“I think they recognize that fluoride is a serious and controversial matter and people have a right to determine if they want to be dosed with a drug or not,” said Callen, of Baldwin, Callen and Hogan in Concord.

The lawyer said it doesn’t make sense to give an entire population fluoride in order to reach what he says are very few children who don’t receive proper dental care and don’t use fluoride toothpaste. It would be cheaper and more effective, he said, to provide dental services to this population through the schools.

Gerhard Bedding, director of the New Hampshire Pure Water Coalition, said the public is becoming more aware of the downsides of fluoridation and more ready to reject “an outdated public health measure.”

Callen believes if the question were put to a vote again in Manchester, it would be defeated.

“The vote was whether to put fluoride in the water. But Manchester isn’t putting fluoride in the water,” he said. “It’s putting in hydrofluorosilicic acid, an industrial byproduct of the fertilizer industry that contains measurable amounts of arsenic and lead.”

Manchester Water Works Director Tom Bowen disagreed that an inferior product is being used. “We made sure we got the highest quality product,” he said.

Bowen said he was disappointed by the court’s decision. He said the Manchester Health Department was the impetus behind the fluoride initiative and he would take direction from the health department on how to respond to the court ruling.

Asked if turning off the fluoride valve was an option, Bowen said, “That’s going to be up to the Health Department.”

Health Officer Fred Rusczek said he expects there will be a statewide effort to enact legislation “so folks can continue to benefit from fluoridated water.”

He said medical and dental societies, the Centers for Disease Control and other health groups support fluoridation.

“It’s still one of the top 10 public health achievements in the last century,” Rusczek said.

Manchester supplies water to 315 customers in Auburn, 5,300 in Bedford, 15,000 in Derry, 6,000 in Goffstown, 6,200 in Hooksett and 5,600 in Londonderry.

Tom Carrier, superintendent of Derry’s water and waste water department, said Derry hasn’t taken a position on the fluoride question, and he doesn’t know if the council will call for a referendum.

He said customers and local medical professionals were notified when Manchester started fluoridating the water three years ago. “There was no public outcry in Derry that I’m aware of,” he said.

Jeffrey Kellett, chairman of Laconia’s water commission, said Laconia will have to review the court’s decision with the city’s legal counsel before responding.

“Up until today, it’s been in the court’s hands. We haven’t talked about what direction we’re going to go in,” Kellett said.

Peter Lavoie, director of community services for Dover, said his city provides fluoridated water to only a “minute” number of people in other towns — to fewer than 10 customers in Madbury and 35 or 40 in Rollinsford.

“We have a few people on the border. It isn’t like Manchester, which is feeding a whole other community,” Lavoie said.