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Court Declines to Rule on Merits in Moms Against Mercury v. FDA -- but Suggests Road Map to Victory

The U.S. Court of Appeals ruled that it lacks jurisdiction (the statutory authority to rule) in Moms Against Mercury, et al. v. FDA, adding the decision is not a ruling on the merits of our cause and implying a remedy could lie in the U.S. District Court.  (Full opinion at www.cadc.uscourts.gov -- on right side click "All Opinions"; see Apr. 13, 2007, 4th case).  

To win this round, FDA paid an enormous price.  To achieve credibility with the court, FDA abandoned its long-time role of cheerleader for amalgam, five times admitting in its court brief that it FDA doesn't know if mercury fillings are safe or unsafe. (Those 5 admissions at www.toxicteeth.org/natcamp_fedgovt_fda_admits_Mar07.cfm)

That a federal agency continues to allow untrammeled sales of a mercury-based device to pregnant women and children while conceding "the lack of definitive scientific evidence" and "intense disagreement about the scientific evidence" is reckless, contemptible, and immoral.  FDA must be hoping that no one outside the Capital Beltway finds out.  Or perhaps some of FDA's protectors of mercury fillings (see next paragraph) intend to disavow those admissions before the ink is dry on the court decision.  Suspecting just that, I sent a warning letter to FDA counsel advising that any statements by FDA returning to the status quo ante constitutes a Fraud on the Court.  (Letter at www.toxicteeth.org/natcamp_fedgovt_fda_brown_Apr07.cfm)

FDA's hard-line protectors of mercury fillings include Associate Comm'r Norris Alderson, who presented the "white paper" apologia for amalgam in September, a position soundly rejected by two Scientific Advisory Committee position; Center for Devices Director Dan Schultz, MD, and Dep. Director Linda Kahan, Esq., who together uphold the outrageous "professional courtesy" stand to allow self-interested dentists ignorant of toxicological issues to make the decision, hence giving primacy to dental economics over children and fetal health; Division Director Chiu Lin, who used an unauthorized substantial equivalence test to OK an application for mercury fillings, even though the applicant himself advised Lin that mercury fillings aren't allowed for pregnant women and children in its home country, the U.K.; and Dental Devices Branch Director Mary Susan Runner, the initiator of the notorious BETAH-LSRO contract and the ADA's fifth columnist inside FDA.

The astonishing gap between FDA's position (doesn't know if it's safe) and its policy (may be implanted into anyone without even warnings) is setting off a grassroots firestorm.  Ken Stoller, M.D., filed a sworn complaint to the New Mexico Board of Pharmacy asking that mercury fillings, no longer certified as safe by FDA, be banned in that state (want to help?--write Ken, hbotnm[at]netzero[dot]com). Philadelphia Councilwoman Blondell Reynolds Brown plans hearings in early May (want to help?--write Freya Koss, frekoss[at]aol[dot]com). The latest example of a reckless dentist leaving bottles of mercury for children to get exposed happened in West Virginia; this time, we have a plan to fight back (want to help?--write Sandy Keech Esq., sandraK[at]toxicteeth[dot]org).  In Ohio, the movement is growing to add a mercury-free dentist to a dental board whose policy is to block from consumers disclosures that "silver fillings" aren't really silver (want to help?--write Jessica Kerger, Esq. a href="mailto:JessKerger@aol.com">JessKerger[at]aol[dot]com).  Congresswoman Watson is closely monitoring these developments in consultation with Members of the House Government Reform Committee (want to help?--write Elizabeth Wright, Elizabeth[at]toxicteeth[dot]org)

Here's the good news about the Court opinion:  It appears to suggest an ongoing violation of law.  The Court holds that FDA may not approve mercury amalgam by using a "substantial equivalent" test.  But that is exactly what FDA is doing when it approves mercury amalgam applications.

In the days ahead (stay tuned to our web site), we will announce our next step to reign in an FDA bureaucracy that exhibits both contempt for the law and reckless indifference to the health, and very lives, of America's born and unborn children.

Charlie Brown, 4/14/07

Charles G. Brown, National Counsel                               

Consumers for Dental Choice