In 2016, the Fluoride Action Network (FAN) and coalition partners filed a petition asking the EPA to ban the deliberate addition of fluoridating chemicals to U.S. drinking water under Section 21 of the Toxic Substances Control Act (TSCA).

Under the TSCA, the EPA evaluates risks from new and existing chemicals and is supposed to act to address any “unreasonable risks” such chemicals may pose to human health and the environment.¹

However, the EPA has maintained that because fluoride supposedly prevents cavities — a “benefit” that’s been disproven — it justifies adding the chemical to water, even though scientific research shows it poses significant risks.²

The EPA dismissed FAN’s petition, prompting the consumer advocacy group and partners to file a lawsuit challenging the EPA’s denial. Since then, a number of victories have occurred that are moving us closer to the goal of getting fluoride out of U.S. drinking water.

Most recently, the U.S. District Court for the Northern District of California denied a request by the EPA to delay the lawsuit’s upcoming trial date of February 3, 2020, instead maintaining the trial timeline. According to FAN:³

“Not only does the victory keep the EPA from increasing the cost of the lawsuit by adding more evidence to examine and another expert witness to depose at the last minute, it also adds to the momentum our legal team has gained from four previous legal victories.”

Fifth Victory Moves Water Fluoridation Ban Closer to Reality

The court’s ruling denying the EPA’s request to delay the trial is the fifth victory in the TSCA lawsuit. Four notable victories have already occurred, beginning in December 2017, when a court denied the EPA’s initial motion to dismiss the case.

A second victory occurred just weeks later when the EPA attempted to block FAN from obtaining internal EPA documents and using new research on fluoride’s toxicity in the trial. Stuart Cooper, FAN’s campaign director, explained:

“Two and a half weeks later, on February 7, 2018, we won a second major legal victory. This time, the EPA tried to put up another roadblock by limiting the scope of discovery. In other words, EPA worked to prohibit our attorneys from obtaining internal EPA documents, and to prohibit our experts from relying upon recently published studies.

… Had the EPA prevailed we would have been prohibited from including any new fluoride neurotoxicity study published after our petition was submitted in November 2016, including the landmark U.S. government-funded 12-year study by Bashash et al. published in September 2017.”

The court again denied the EPA’s motion, which meant the 12-year study could be used in the case. “This study is critical in demonstrating that fluoride is neurotoxic and has no place in the public water supply,” Cooper added. The study in question showed that higher exposure to fluoride while in utero is associated with lower scores on tests of cognitive function in childhood, both at the age of 4 and 6-to-12 years.⁴

The study involved 299 pairs of women and their babies. Mexico does not fluoridate their drinking water, but the study participants were exposed to fluoride via fluoridated salt and varying levels of naturally occurring fluoride in drinking water.

While previous studies have used measurements of fluoride levels in drinking water to estimate a population’s exposure, the featured study used urine samples — in both the mothers and their children — to determine fluoride exposure.

The researchers then compared fluoride levels with each child’s intelligence, assessed using the General Cognitive Index (GCI) of the McCarthy Scales of Children’s Abilities at age 4 and again between the ages of 6 and 12 years using the Wechsler Abbreviated Scale of Intelligence (WASI).⁵

While the children’s fluoride levels at ages 4 and 6-to-12 were not associated with their intelligence, the study found that exposure that occurs prenatally was linked to lower intelligence scores. In fact, women with higher levels of fluoride in their urine during pregnancy were more likely to have children with lower intelligence.

Specifically, each 0.5 milligram per liter increase in pregnant women’s fluoride levels was associated with a reduction of 3.15 and 2.5 points on the children’s GCI and WASI scores, respectively.

Third and Fourth Victories Leading to Landmark Trial

After the EPA lost its request to block FAN attorneys from obtaining internal documents or using pertinent new research in the trial, the agency then objected to sharing internal documents or allowing employees to be deposed about EPA’s fluoride safety standards. In October 2018, a court again ruled against the EPA, stating that this internal information had to be shared.⁶

“The EPA’s documents and correspondence relating to the specified studies are relevant to the ultimate issue the Court must decide — whether the ingestion of fluoride in drinking water causes neurotoxic harm,” the ruling stated.⁷

In the fourth victory, which occurred in April 2019, the court ordered the EPA to produce additional documents and scientists for deposition.⁸ With the fifth victory denying the EPA’s attempt to delay the trial for 65 days, the lawsuit is scheduled to begin as originally scheduled on February 3, 2020.

In November 2019, the National Toxicology Program’s (NTP) draft review of fluoride’s neurodevelopmental effects on humans is set to be released, and the EPA had attempted to use this as reason to delay the trial, but the judge disagreed. FAN’s attorneys, in a brief response to the EPA’s request for delay, stated:⁹

“EPA has been aware of the NTP’s … monograph for the entirety of this litigation. EPA is not only a member of NTP’s Executive Committee but provided comments to the NTP about the review prior to the review’s commencement in late 2016. At no point, however, during the 2+ years of this litigation has EPA expressed any concern that the NTP review could affect the scheduling of this case.”

The NTP’s research report on the effects of fluoride on learning and memory in animals was released in July 2016, and found a low to moderate level of evidence suggesting exposure to fluoride at concentrations higher than 0.7 parts per million (ppm) may have adverse effects on learning and memory.

The exposure level of 0.7 ppm is the recommended level for water fluoridation in the U.S., and the review found “very few studies assessed learning and memory effects” in animals at exposure levels near 0.7 ppm.¹⁰ However, as noted by FAN’s Cooper:

“ … [I]t is worrying that the NTP specified that an animal study should be conducted at 0.7 ppm — which is a ridiculous provision for an animal study on fluoride.

For example, it is well-known that rats need a much higher dose of fluoride in their water to reach the same plasma levels in humans. Moreover, it is standard practice in toxicology to use much higher doses in animals to tease out effects.”