Oregon State Bar Bulletin — AUGUST/SEPTEMBER 2005

Martin Turns 50
Fluoridation litigation, then and now
By Antonia Giedwoyn

Fifty years ago this past August, legal history was made in the U.S. District Court of Oregon with a case involving exposure to fluoride. Half a century later, the heart of the case is still beating. Although the issue of human exposure to fluoridation chemicals in Oregon has changed shape, it remains capable of provoking litigation, now more than ever. The question is, would suits challenging mandatory water fluoridation in Oregon communities have a fighting chance?

The answer depends on whom you ask.

Towards the end of summer in 1955, the case Martin vs. Reynolds Metals proved for the first time in the United States that airborne particles from an aluminum reduction plant had caused illness to humans.

Rancher Paul Martin, his wife Verla and their daughter Paula had moved to their Troutdale, Ore. ranch in 1946. The approximately 2,000-acre property bordered the Columbia and Sandy rivers as well as Reynolds Metals Co., an aluminum factory whose major contaminants at the site included fluoride.1

Soon after moving to the ranch, Martin’s livestock became sick and died. In a letter to the family’s attorney, George Mead, Verla Martin described dead and sick horses on the property with backs "all blistered and burned from the fluorine fumes, so badly that they bleed."

In a letter to then President Dwight Eisenhower, dated Feb. 4, 1953, Paul Martin wrote, "I own a beef cattle ranch which due to fluorine contamination has not been in operation for the past three years…chemists found that the bones of these cattle contained fluorine in excessive amounts. Also that the liver, kidney and glands of these animals were damaged and high in fluorine content. The teeth of the animals were so diseased that a person could pull them out with their fingers. In the spring of 1950 I had over 100 head of grown cattle die, in fact the Western States Rendering Company picked up 13 dead cows in one day."

Before long, the Martin family also became sick. Physicians diagnosed them with subacute fluorosis.2

"We were all three in good health before the Reynolds Metal Company opened this plant," Paul Martin’s letter goes on to say. "After the plant had been in operation about a year, we all three started having digestive trouble, respiratory trouble and swollen, aching joints. We have written, signed reports from leading doctors stating that we all three have chronic fluorine poisoning, tests show that all three of us have damaged liver, kidneys and glands plus bone damage…I know you are a busy man, Mr. President, but I am hoping that you will be able to do something in regards to this mess, so that I may move back to my ranch and operate it."

Prosecuting attorneys Mead and Irving Rand alleged that toxic gases emitted from the Reynolds plant had poisoned the family. The jury and appellate court ruled in favor of the Martins.

Since that time, Oregon lawmakers have argued about requiring statewide water fluoridation. Most dentists say fluoride helps reduce tooth decay and that artificial water fluoridation is a harmless way for Oregonians who can’t afford toothpaste to access fluoride. Dentists began using fluoride as a topical treatment in the late 1940s, and in 1950, Grand Rapids, Mich., became the first U.S. city to put fluoride in its water supply. It is estimated that two-thirds of the public water supply is now fluoridated, and there an emerging movement calling for fluoridation in all public water supplies. The Centers for Disease Control hails fluoridation of public water supplies as "one of ten great public health achievements of the 20th century." Its most vocal supporter is the 150,000- member American Dental Association, which has long championed the effectiveness and safety of fluoride in treating tooth decay. In its 2005 publication "Fluoridation Facts,"3 the organization notes that fluoridation is endorsed by both the National Institutes of Health and the U.S. Public Health Service. The ADA points to numerous scientific studies finding fluoride to be safe; in its most recent fluoride report, the ADA dismisses reports to the contrary as "pseudo-science."

On the other hand, critics point out that although the U.S. Food & Drug Administration has approved the use of fluoride products for topical application (such as toothpaste containing fluoride), it has never approved a fluoride compound for ingestion for the purpose of reducing tooth decay. (The FDA defines any fluoride product swallowed for a reduction in tooth decay as a drug.) Further clouding the issue is the fact that no federal agency currently regulates water additives, including fluoride. Finally, critics point to a growing body of scientific literature — including a recent Harvard study showing a strong link between fluoridaton and a rare but lethal form of bone cancer — that connects fluoridated water to health problems. Opponents of fluoridation believe that such evidence – along with the absence of FDA approval or a federal regulation scheme – might provide them their day in court.

In Oregon, legal activity spurred by concerns over water fluoridation has been modest since Martin. Oregon attorneys contacted for this article said they are unaware of any lawsuits that have challenged mandatory water fluoridation in Oregon communities. However, the current push by fluoridation proponents to fluoridate cities such as Portland and others that have resisted past efforts to do so could throw open the door to litigation.

"I definitely think there could be litigation if the legislature and dentists force fluoridation on Oregon," said Brent Foster, a Mosier, Ore. attorney. "Given what the scientific and medical evidence now shows are the very real risks of drinking water fluoridation, both the state and cities would be legally negligent for adding these products into people’s drinking water."

Foster was alluding to the distinction between what is known as the MCL (maximum contaminant level) and the MCLG (the maximum contaminant level goal). The MCL is the highest level of a regulated contaminant allowed in drinking water, whereas the MCLG, the goal, is defined as the level of a contaminant in drinking water at or below which there is no known or expected health risk. It’s the accepted scientific point of safety.

The distinction is discussed in detail in "Arsenic in Drinking Water 2001 Update," a document written in response to the U.S. House Committee on Science in 2000 by NSF International, a company involved with the certification of water fluoridation chemicals. NSF provided data showing that manufacturers’ samples had tested positive for lead and arsenic. In both cases, the levels were within the allowable limits (the MCL), but short of the EPA’s goal (the MCLG). The NSF document quotes the National Research Council – an organization whose research is frequently cited by both sides of the issue – as saying the levels of arsenic would result in more than one bladder or lung cancer per every 1,000 consumers.

Even though very low concentrations of arsenic in drinking water have been linked linked to cancer, not everyone agrees that mandating water fluoridation throughout Oregon could spur lawsuits, at least not successful ones. When asked whether Rep. Bob Jenson, chair of the Oregon House Water Committee, is concerned about the potential for litigation, an office spokesman dismissed the idea.

"That doesn’t appear very likely to us," said attorney Shaun Jillions, addressing the topic on behalf of Jenson. "Communities throughout the nation have been fluoridated for over 60 years...and we have not been made aware of a single documented case that was successful...they can’t definitively demonstrate that fluoride is having that effect on them," Jillions said, referring to health problems.

However, as Martin vs. Reynolds vividly demonstrated 50 years ago, it is possible to convince a court of fluoride-related harm to human health. Nowadays, because it’s not a matter of a sick family living near a polluting factory but rather one of adding chemicals to the public’s drinking water for claimed medicinal purposes, fluoridation litigation is trickier.

That’s the one thing everyone seems to agree on.

Courts in Pennsylvania, Illinois and Texas concluded after extensive expert witness testimony that fluoride in the water at 1 part per million has aggravated existing illnesses, caused adverse health effects and is linked to increased cancer deaths. But higher courts ruled in these cases that challenges involving representative government in the form that they were pleaded, as attacks on public policy, required a higher legal standard than proof.

"It’s hard to find the actual jurisdictional trigger. It would definitely be an uphill battle," said Melissa Powers, a Portland attorney with the Pacific Environmental Advocacy Center. "The case law is really terrible; the constitutional challenges have failed across the board."

One example is Coshow vs. the City of Escondido, argued in California’s Fourth Appellate District Court. The plaintiffs did not challenge the public policy of fluoridation, but instead claimed the government’s conduct permitting fluoridation was unconstitutional because it violated the constitutional right of bodily integrity and privacy under the Ninth and 14th Amendments to the U.S. Constitution and Articles 1 and 7 of the California Constitution.

The respondents argued that the city is required by California law to fluoridate the drinking water and that the city’s fluoridation plan was subject to review and approval by the California Department of Health Services in agreement with the provisions of the Safe Drinking Water Act.

"The city can’t do anything until the state gives us a permit to do so," said Jennifer McCain, assistant city attorney for Escondido, speaking before the case was heard by the California appeals court. "Fluoridation in the state of California has been deemed constitutional for a long time, so we don’t believe the plaintiffs’ case has any merit based on existing legal authority." The city’s response did not address the issue of harm.

Last month, the appeals court came to an unpublished conclusion affirming the lower court’s decision to allow fluoridation to continue. The plaintiffs are expected to ask the California Supreme Court to review the issue, according to Jeff Green, a spokesman for the plaintiffs and volunteer national director of Citizens for Safe Drinking Water, a group that actively participates with Oregon affiliates involved in water safety and standards.

Constitutional challenges are just one possibility, experts say. A suit for negligence is another possibility. According to Foster, legal challenges could be built around the fact that fluoride has never been approved as a drug by the FDA and that adding it to water for the purpose of treating human health is a violation of federal law.

"What creates a new opportunity for litigation on fluoride is not a change in the law, but the incredibly large body of science which clearly shows there are serious reasons to be concerned about adding fluoride (to drinking water)," he said.

Last year, Foster represented several Hood River residents challenging the city’s proposed ballot measure asking whether residents favor fluoridated water. Because the measure did not disclose the three fluoride compounds that would be used, they contended the city’s ballot language was unfair and misleading, and that the ballot measure needed to list the chemicals and clarify that they contain contaminants. Foster and the residents reached a settlement with the city attorney, he said, but the city council eventually pulled the measure.

Since then, voters of Hood River recently enacted a law that restricts the amount of contaminants that can be present in chemicals added to water to treat people. The vote essentially prohibits fluoridation chemicals from being added.

Nationally, the case of Doe vs. Rumsfeld may shed another light on the issue of current fluoridation litigation. The lawsuit, filed in 2003 in the District of Columbia on behalf of six military service members, concerned the right to informed consent as it related to anthrax vaccinations during a time of war.

The case parallels the fluoridation suits in that the anthrax vaccines were not FDA approved at the time they were mandated. The court ruled that the U.S. Department of Defense must halt the Anthrax Vaccination Immunization Program until or unless the vaccine was approved by the FDA. Within a month of the ruling, the FDA gave its approval, and the Anthrax Vaccination Immunization Program has resumed for service members who consent to the inoculation.

"Contrary to the lower court decision being appealed in the Escondido case, this District of Columbia court concluded that forced medication with a substance that was not approved by the FDA for the specific disease and manner in which it was delivered was an ‘arbitrary’ act and is thus unconstitutional," Green said. "The salient point is that the court’s decision to restrain government on this basis is not contested by the Department of Defense and further clarifies an issue that we believe will be an important consideration in cases involving the selection of fluoridation chemicals intended to treat humans."

CONCLUSION
Approximately 20 percent of Oregonians currently drink fluoridated water. If the percentage of Oregonians drinking fluoridated water jumps high enough, particularly if it’s due to state or federal legislation or municipalities instead of voters having chosen it, court clerks may find themselves adding a growing number of fluoridation suits to the docket. And attorneys on both sides, arguing as heatedly as their Martin vs. Reynolds predecessors, will anxiously wonder whether they’ll hear echoes of that David and Goliath case.

ENDNOTES
1. Public Health Assessment of Reynolds Metals Company. January 14, 1997. The Agency for Toxic Substances and Disease Registry, Division of Health Assessment and Consultation, Superfund Site Assessment Branch

2. Reynolds Metals Company vs. Paul Martin. Plaintiffs’ direct examination, p. 492, U.S. Court of Appeals, 9th Circuit Ct. of Appeals, San Francisco, Court Case Papers and Printed Matter, Case # 14990, transcript of record in six volumes, Folders 14990-14992, Boxes 5888-5890, RG 276

3. From the website of the American Dental Association, www.ada.org/public/topics/fluoride.

ABOUT THE AUTHOR
Antonia Giedwoyn is a Portland journalist who writes articles for kgw.com, the website for KGW Northwest News Channel 8.

 

© 2005 Antonia Giedwoyn

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