Federal environmental regulators would need to reevaluate acceptable fluoride levels in American drinking water under a ruling from a federal judge, after the judge agreed with activists that current fluoride drinking water levels could be contributing to loss of IQ in American children.
On Sept. 24, U.S. District Judge Edward Chen sided with Washington, D.C.-based activist group Food & Water Watch, saying the U.S. Environmental Protection Agency must take into consideration the alleged neurological effects of fluoride when setting acceptable drinking water limits, not only the dental and skeletal effects of adding the element to potable water supplies.
"... The Court finds that fluoridation of water ... the level presently considered 'optimal' in the United States poses an unreasonable risk of reduced IQ in children," Judge Chen wrote in his ruling. "It should be noted that this finding does not conclude with certainty that fluoridated water is injurious to public health; rather, as required by (federal law), the Court finds there is an unreasonable risk of such injury, a risk sufficient to require the EPA to engage with a regulatory response."
The decision comes about eight years since Food & Water Watch first took advantage of a revised federal law known as the Toxic Substances Control Act to petition the EPA to review its rules for fluoride in water to specifically take into account the alleged harmful effects of the chemical on children's brain development.
Fluoride has been added to many U.S. drinking water supplies for decades since scientists first took note of its ability to improve human health by preventing cavities in teeth and improving oral health.
However, over those decades, the use of the substance has come under increased scrutiny, as critics of the longstanding fluoridation programs have pointed to studies they say show the sustained ingestion of fluoride can produce harmful effects, particularly in children.
And most recently, what the judge called a "growing and robust body of evidence" has pointed to a link between the ingestion of fluoride by mothers and their children and "cognitive impairment in children."
In his decision, Chen noted research from the federal U.S. National Toxicology Program generally points to a loss of one IQ point in children for every 0.28 milligrams per liter (mg/L) of fluoride detected in a pregnant mother's urine.
The judge called that estimation "highly concerning," as "maternal urinary fluoride levels for pregnant mothers in the U.S. range from 0.8 mg/L at the median and 1.89 mg/L depending upon the degree of exposure."
Currently, the EPA allows fluoride levels of up to 4 mg/L in drinking water, and has set an "optimal" level of 0.7 mg/L to further public dental health goals.
Despite the NTP findings, the EPA denied Food & Water Watch's petition to consider such cognitive and neurological risk when setting fluoride limits, and the activists then sued.
Judge Chen agreed that under the revised TSCA law, the courts have the authority to override the EPA's decision and order the agency to do as the petition seeks.
The judge noted the courts do not have the authority to order the EPA to come to a particular conclusion or to order the EPA to set particular limits.
But he said, in this instance, he believed the activists had done enough to win an order requiring the EPA to possibly set new rules.
"The trial evidence in this case establishes that even if there is some uncertainty as to the precise level at which fluoride becomes hazardous, under even the most conservative estimates of this level, there is not enough of a margin between the accepted hazard level and the actual human exposure levels to find that fluoride is safe," the judge wrote.
"Simply put, the risk to health at exposure levels in United States drinking water is sufficiently high to trigger regulatory response by the EPA under Amended TSCA."
In the ruling, Judge Chen ordered the EPA to "initiate" the so-called "rulemaking" process, as directed under federal law.
The judge directed both sides to present arguments over whether taxpayers should be made to pay the legal fees for Food & Water Watch.
Chen has served on the federal bench in the Northern District of California since he was appointed by former President Barack Obama in 2011. Before becoming a judge, Chen was an attorney with the American Civil Liberties Union.
In response to the ruling, Food & Water Watch proclaimed "victory." In a post on their website, the group said: "...In 2016, we joined allies to file a petition asking the EPA to limit or ban fluoridation and then sued the agency when it denied our petition. This September, after considering extensive scientific evidence, a federal court ruled in our favor.
"As the Court wrote, we have proven 'that water fluoridation at the level of 0.7 mg/L — the prescribed optimal level of fluoridation in the United States — presents an 'unreasonable risk of injury to health or the environment, without consideration of costs or other non-risk factors.'
"As a result, the EPA can no longer ignore the risk and must strengthen its regulations."
In published reports, the EPA said it was "reviewing the decision," but declined further comment.
Other observers, however, said the decision won't yet affect American drinking water as any potential rulemaking process plays out, pending appeal.
During that process, for instance, regulators will most likely hear from representatives of groups like the American Academy of Pediatrics, which has maintained its position that fluoride be added to drinking water and toothpaste, and agencies like the Centers for Disease Control, which also still considers water fluoridation to be a safe and effective public health intervention.
The Association of Metropolitan Water Agencies, a trade and lobbying group representing many of the largest public drinking water suppliers in California and throughout the country, also indicated it essentially would take a wait-and-see approach to the legal action over drinking water fluoride and potential regulatory response.
"Whether to fluoridate drinking water at all is a local choice, and the court's decision does not affect that. Communities across the country continue to be bound by the Safe Drinking Water Act's limit of 4.0 parts-per-million of fluoride in drinking water," said AMWA CEO Tom Dobbins.
"As the court has instructed EPA to initiate a rulemaking related to fluoride under the Toxic Substances Control Act, AMWA and its members eagerly await EPA's response and guidance on any additional actions that should be taken at the local level."