The U.S. government and plaintiffs have agreed to begin a second phase of the long-delayed fluoride lawsuit in January 2024.
On Tuesday Judge Edward Chen, the Fluoride Action Network (FAN), and the U.S. Environmental Protection Agency set a date of January 29, 2024 for the second phase of the ongoing fluoride lawsuit. The second phase of the trial is set to last one to two weeks.
The FAN sued the EPA after their 2016 petition under the Toxic Substances Control Act was denied. Since that time the plaintiffs and the U.S. government have been locked in a legal battle, with FAN attempting to prove that fluoride is a neurotoxin and should be regulated or banned under the TSCA.
The court’s decision comes only weeks after the U.S. National Toxicology Program released a previously suppressed draft report from May 2022 which concluded that “higher fluoride exposure is consistently associated with lower IQ in children”. The NTP also released a July 2022 meta analysis, titled Association between fluoride exposure and children’s intelligence: A systematic review and meta-analysis. The scientists behind this meta analysis drew similar conclusions as the monograph, writing:
“This meta-analysis confirms results of previous meta-analyses and extends them by including newer, more precise studies with individual-level exposure measures. The consistency of the data supports an inverse association between fluoride exposure and children’s IQ.”
During Tuesday’s hearing, FAN’s lead attorney Michael Connett told Judge Chen that the release of these documents means the court now has sufficient data to make a decision on the toxicity of fluoride. Connett also told Judge Chen that the plaintiffs intend to “examine some of the facts around HHS’s (Department of Health and Human Services) decision not to release the NTP documents“, a reference to emails between the HHS and CDC which were released as part of open records requests.
Those emails state that Assistant Secretary of Health Rachel Levine did not want the NTP report to become public despite the NTP scientists themselves saying it was ready for release. An email dated June 3rd, 2022, shows Nicole Johnson, Associate Director for Policy, Partnerships and Strategic Communication in CDC’s Oral Health Division contacting Jennifer Greaser, a Senior Public Health Policy Analyst in CDC’s Washington office. Johnson states:
“The latest we heard (yesterday) is that ASH Levine has put the report on hold until further notice.”
Connett also noted that the plaintiffs plan to depose more witnesses in the effort to “understand why the HHS instructed the NTP not to release that monograph”. He also said they plan to depose an official from the CDC and the office of the Assistant Secretary of Health, as well as NTP Director Dr. Richard Woychik. Dr. Woychik previously filed a declaration with the court claiming responsibility for blocking the release of the NTP monograph. Connett said the ultimate goal of the depositions is to “understand why that report, which was considered complete and final by NTP scientists, was not allowed to be published”.
Judge Chen appeared to pushback on the plaintiff’s digging further into the claims of political interference. “Whether there is goodwill or ill will, isn’t that enough that we have the documents?,” Judge Chen asked Connett.
While Connett agreed that the case rests on the science surrounding fluoride’s toxicity he also argued that the court will eventually be faced with “the question of how much weight to give the NTP May 2022 draft assessment“. Connett said he believes the EPA will attempt to argue that the draft report has been criticized by internal reviewers and is only a draft and therefore should not be seen as credible evidence.
“It is our position that this is the report the court has been waiting for for 2 years and the only reason it wasn’t released is because of political pressure,” Connett stated to Judge Chen. Connett argued that understanding the “lack of scientific merit” behind the NTP’s decision not to publish the draft report will help the Judge decide how much weight to give the NTP review.
After hearing from Connett and the EPA, Judge Chen emphatically stated that the case is only about the science. “To me the science is more important than whether politicians got involved to try to squash the report,” Judge Chen stated.
The Board of Scientific Counselors Recommendation Comes May 4th
Michael Connett told Judge Chen that he was thankful the Board of Scientific Counselors (BSC) working group will be reporting their recommendations following the latest review of the NTP monograph at a public meeting on May 4th.
The BSC will then make a recommendation to Dr. Richard Woychik, Director of the NTP. Since Woychik claimed responsibility for blocking the release of the May 2022 draft report — which NTP scientists repeatedly said was ready for public release — his role in the review process will likely factor into future hearings of the lawsuit between the FAN and EPA.
With Judge Chen having access to the May and September 2022 draft reports from the NTP, as well as the meta-analysis, and the BSC reviewer comments, the court should be in a position to rule on fluoride’s toxicity by mid-February 2024.