Long Awaited Trial Date Set for EPA Fluoride Lawsuit

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In a court hearing on Tuesday, the second trial date was set for Jan. 29, 2024, in the ongoing lawsuit (pdf) brought against the Environmental Protection Agency (EPA) by the Fluoride Action Network (FAN) “to prohibit the addition of fluoridation chemicals to drinking water supplies.”

The lawsuit that began six years ago has seen many delays and recently revealed (pdf) government attempts to limit and delay the May 2022 National Toxicology Program’s (NTP) monograph (pdf), reviewing fluoride neurotoxicity.

The NTP monograph draft that included comments provided by the Board of Scientific Counselors (BSC), the NTP’s subsequent responses, and a related meta-analysis, was finally made public on March 15 under an agreement reached amid the suit.

The NTP has announced that on May 4 the working group for the BSC will be presenting its conclusions and recommendations on the NTP draft in a public meeting to the full council, and the BSC will deliberate and make recommendations to NTP director Dr. Rick Woychik.

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A recent press release from FAN stated that “this all comes after the report went through an unprecedented multi-tiered peer review process that no other monograph in history has undergone, including being reviewed twice by the National Academies of Science, Engineering, and Medicine (NASEM), reviewed by a select group of external subject matter experts, and reviewed by various pro-fluoridation agencies within HHS [United States Department of Health and Human Services].”

Woychik will decide whether or not to publish the NTP or if any further revisions are needed before publication, although representatives of the FAN remain skeptical stating in their press release that, “evidence obtained by FAN through the Freedom of Information Act indicates that the decision will likely be political rather than science-based, and made instead by Assistant Secretary of Health, Dr. Rachel Levine.”

Plaintiff attorney Michael Connett said that once the NTPs assessment is considered by NTP scientists to be complete and final, the court will have a diverse set and full spectrum of evidence for debate and discourse including the agency criticisms coming from agency personnel that are strong advocates of water fluoridation, external peer reviewers, the working group’s responses to the NTP, and responses to the agency criticisms.

Deposition of Government Officials Denied

In response to Judge Edward M. Chen’s inquiry on what further expert depositions were required, Connett said that they have several federal officials that they would like to depose, including Woychik, an official from the Centers for Disease Control and Prevention, the National Institute of Dental and Craniofacial Research, and potentially someone from the assistant secretary of health’s office.

Connett said that the depositions intended to understand why the HHS instructed the NTP to not publish the monograph which was considered complete and final by NTP scientists. He noted that the HHS took the position that the monograph was a privileged confidential report.

Chen questioned the relevance of deposing federal officials saying he wanted to focus on the science rather than the politics, which is more important than whether politicians got involved to try to squelch the NTP report or had goodwill or ill will, he said.

Attorney for the EPA, Brandon Adkins weighed in, arguing that this is an unrelated issue that’s not at the heart of the matter, which is whether the artificial fluoridation of drinking water supplies present an unreasonable risk. This case isn’t about the agency’s motivations whether or not to publish a draft of a monograph, he said.

Connett clarified that the NPT report is critical evidence in the case that the court had been waiting for two years to receive and the only reason it wasn’t final as of last May was because of political pressures from HHS on the NTP. The reason for the deposition of federal officials, he continued, was to gather evidence showing there may not have been scientific merit behind the decision to not publish the report.

Because it may be possible that the EPA will argue in trial that it shouldn’t be given much weight—or any weight—these depositions will provide the necessary factual evidence to counter that, Connett said.

In the end, Chen chose to keep depositions limited for now unless there is indication that causes him to question whether the EPA was acting in good faith or representation that affects the proceedings that warrant opening up this area of inquiry.

You can find more information on the ongoing lawsuit here.