A federal appeals court has vacated a landmark decision that found fluoridated drinking water poses an “unreasonable risk” to children’s health under the Toxic Substances Control Act (TSCA).
The decision by the 9th U.S. Circuit Court of Appeals did not challenge the substance of the lower court’s findings — that fluoride is toxic to children and ought to be regulated. Instead, the court based its decision on procedural issues related to the lower court’s handling of the litigation.
The case will now go back to the U.S. District Court for the Northern District of California, where District Judge Edward Chen will be required to exclude all scientific evidence that became available after 2020.
Michael Connett, attorney for the plaintiffs, told The Defender the court “instructed Judge Chen to travel back in time to 2020 and make this ruling based on a stale factual record.”
Connett said the directive to ignore years’ worth of evidence on fluoride’s dangers runs counter to the intent of the TSCA — which is to protect hundreds of millions of Americans from substances that are harmful to human health.
The federal appeals court ruling, handed down late Thursday, stemmed from a lawsuit against the U.S. Environmental Protection Agency (EPA) brought by consumer advocacy groups including Food & Water Watch, the Fluoride Action Network (FAN), and Moms Against Fluoridation.
The groups sued after the EPA refused to consider their 2016 citizens’ petition asking the agency to regulate fluoride.
After two bench trials, Chen ruled that fluoride at the federally recommended concentration of 0.7 milligrams/liter (mg/L) posed an “unreasonable risk” to children’s health and ordered the EPA to regulate it accordingly.
However, the 9th Circuit panel said the lower court violated the “party presentation principle” — a legal doctrine requiring courts to act as neutral arbiters rather than taking control of a case’s factual development.
Connett said the decision was “a very expansive and unprecedented application of the party presentation principle.” He said that to date, “this principle has really only been applied to situations where judges raise new legal issues, not where judges use procedural mechanisms to resolve the issues presented.”
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