Justice Delayed
The Court requested on the last day of the trial that FAN submit a new petition to the EPA to allow them another 90-day opportunity to respond to our original 2016 petition with the addition of all the new studies on fluoride neurotoxicity published between 2017-2020. The Court also requested that FAN include petitioners who were pregnant or planning a pregnancy in light of the science linking early-life exposure to fluoridated water to adverse neurodevelopmental effects in these new studies.
On November 4, 2020, FAN filed a supplement to our original petition to the EPA. The supplement asked that EPA reconsider their denial of our 2016 Petition. The supplement has done everything the Court asked us to do with a new petition. The supplement also responds to the issue of standing by identifying nine members of Food & Water Watch “who are currently pregnant, women who are actively seeking to become pregnant, and/or mothers of infants”.
In December 2020, the EPA filed a last ditch motion to attempt to dismiss our landmark case, arguing that plaintiffs lacked standing; a motion they had previously made and were denied. The Court denied the EPA motion as being premature and procedurally improper. The trial will continue, in abeyance, as the Court awaits the EPA’s response to FAN’s updated petition and an updated draft of the National Toxicology Programs (NTP) monograph on fluoride’s neurotoxicity, expected early in 2021.
In January 2021, the EPA denies FAN’s supplemental petition, setting the stage for additional hearings and filings in the TSCA fluoride lawsuit. An April 2021 status hearing with the Court focused on FAN’s amended petition to the EPA, which the Judge recommended before he placed the trial in abeyance. The amended version has a more detailed list of plaintiffs and includes recent studies that were not a part of the trial. The Court grants FAN’s motion to supplement our pleadings to introduce additional evidence on standing, which should satisfy the Judge’s prior concerns on this issue and ensure that the case is resolved on the merits.
The Judge reiterates that he is keen to read the NTP’s finalized report on fluoride’s neurotoxicity as well as other new science on the issue, including an upcoming pooled analysis of the NIH-funded birth cohort studies. To consider this new science, the Judge discussed having a “phase 2 trial” where Plaintiffs and EPA can introduce additional expert testimony on the NTP report and other developments. In June 2021, FAN attorney Michael Connett informs the Court of a new landmark study by Grandjean et al., confirming that very low levels of fluoride exposure during pregnancy impairs the brain development of the child. The paper’s authors concluded in the Benchmark Dose (BMD) analysis that a maternal urine fluoride concentration of 0.2mg/L was enough to lower IQ by 1 point. The judge was waiting to see this analysis as well as the final version of the NTP review before moving forward with the case.
In a January 2022 status hearing, the Judge reiterates his desire to wait until the NTP publishes the final version of their review on fluoride’s neurotoxicity before continuing with the trial. The NTP report had been delayed, with speculation brewing that dental interests were actively influencing the report’s final publication.
In September 2022, FAN filed a motion to lift the pause on the trial in response to the indefinite postponement of the NTP fluoride review. The final publication of the NTP review was expected at the end of 2021, then promised again in early 2022, with May 2022 being the long-awaited release date. May 2022 came and went without any sign of the NTP report.
In October 2022, FAN attorney Michael Connett introduced evidence from Freedom of Information Act (FOIA) documents showing that political pressures had prevented NTP from releasing its long-delayed report [link to new NTP page]. The Court promptly granted our motion to lift the stay on the trial and permit additional discovery into the NTP review.
EPA’s objections to using any version of the NTP report besides the “final” version during the trial was based on their concern that the NTP’s findings would be made public prematurely. To circumvent this objection, the Court placed the NTP’s review under protective order so that it was only made available to the parties involved, the Court, and expert witnesses. The Court urged both parties to come together and find a way to get the current NTP review into the Court’s hands “voluntarily,” while also leaving the door open for FAN attorney Michael Connett to use “subpoenas or a motion to compel,” the release of the long-delayed report.
In December 2022, after extensive negotiations, the Department of Justice (DOJ) agreed to produce a copy of NTP's suppressed report on fluoride. The report is produced under a strict protective order.
FAN attorney Michael Connett gives an update on the progress of the TSCA Fluoride Lawsuit (Dec 2022)
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FAN Attorney Michael Connett shared with the Court FAN’s desire to see the final NTP review from May 2022 available to the public, as well as the communications and criticisms from the CDC and HHS that led to it being blocked. Connett pointed out that FAN had evidence obtained through FOIA requests showing that the American Dental Association (ADA) was already given the NTP review so they could work to discredit it, and therefore there is no justifiable reason for the EPA to continue hiding it from the public.
In January 2023 the Court ruled against EPA’s request for additional delay of the trial, acknowledging that “justice delayed is justice denied”. The Court sets a timeline for the final phase leading to a verdict.
In February 2023, after being served a subpoena by our attorneys, the NTP agreed to publicly produce their final report that was intended to be published in May of 2022, along with communications between various federal agencies and the NTP about the report. This allows the public to finally see the report and accompanying documents that were blocked from being published by the leadership at U.S. Health and Human Services (HHS) in May of 2022. Internal CDC emails discovered through FOIA by FAN show that the publication was blocked at the last second due to interference from Assistant Health Secretary, Rachel Levine.
Fluoride Lawsuit Captures Shocking Admissions On The Record
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The NTP fluoride review was issued in two parts, a monograph and a meta-analysis. The meta-analysis found that 52 of 55 studies found lower IQ with higher fluoride exposures, demonstrating remarkable consistency. Of the 19 studies rated higher quality, 18 found lowering of IQ. The meta-analysis could not detect any safe exposure, including at levels common from drinking artificially fluoridated water.
In March 2023 the Court denied EPA's motion to prevent FAN from conducting depositions into the suppression of the NTP report. Dates are set for the final phase of the TSCA fluoride lawsuit - January 29 thru February 13, 2024.
FAN learned at an October 2023 status hearing the start date for the last phase of our fluoride trial would be pushed back two days to January 31st, 2024. The expiration of the CARES Act means that our attorneys will present live, in-person from the federal courthouse in San Francisco during the second phase of the trial. The trial will be live streamed on Zoom for the public to view.
In a January 2024 pre-trial hearing, FAN attorney Michael Connett introduced evidence that key a EPA witness lied under oath.