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Appeals court affirms Escondido fluoridation

Escondido, Calif. — The city of Escondido scored a big fluoridation victory Aug. 17 in the San Diego County Court of Appeal.

In the matter of Coshow v. City of Escondido, Judge Jacqueline M. Stern affirmed a lower court's decision in the case that upheld the city's right to fluoridate its water.

"[C]ourts through[out] the United States have uniformly held that fluoridation of water is a reasonable and proper exercise of the police power in the interest of public health. .... The matter is no longer an open question," reads the opinion, applying earlier case law for the first time to California's statewide fluoridation law passed in 1995.

Plaintiffs had challenged Escondido's community water fluoridation in September 2001. Eventually, the plaintiffs' complaint argued that community water fluoridation violated constitutional rights of citizens and the chemical chosen by the city to fluoridate — hydrofluorosilicic acid (HFSA) — should not be used.

Judge Stern's ruling nixed the argument that fluoridation violated citizens' constitutional rights. She also ruled that using HFSA to fluoridate was not forced medication. Judge Stern also noted that the argument that HFSA was not approved by the U.S. Food and Drug Administration for treating dental caries was not relevant because the FDA's authority over food, drugs and cosmetics, including its regulation of fluoride in various products, does not extend to the public supplies of drinking water.

"This case is a significant victory for fluoridation," said Karen L. Fried, deputy attorney general for the California Department of Justice. "The Court of Appeal affirmed the trial court's dismissal of the case as a matter of law because the state, through the Department of Health Services, clearly has a legitimate interest in protecting the dental health of its citizen and that hydrofluorosilicic acid as the delivery agent is rationally related to accomplishing the state's interest in fluoridating the public drinking water supply."

Ms. Fried said a variety of resources from the ADA and the Centers for Disease Control and Prevention, including the National Fluoridation Symposium 2005 in July, helped her prepare for her oral argument before the Court of Appeal.

"During my oral argument, I utilized the information presented in a panel discussion on legal issues that no court of last resort has ever held fluoridation to be unconstitutional," Ms. Fried said, referring to a point emphasized by ADA's Division of Legal Affairs at the symposium and in the ADA resource guide, Fluoridation Facts. "I added that no court of last resort has ever held use of HFSA as the delivery agent to be unconstitutional. The symposium was enormously helpful in educating me concerning fluoridation as well as allowing me to meet other attorneys who have had similar cases."

"It is important that the knowledge gained from each case be recorded and passed to the next anti-fluoridation case," she added, referring to a joint effort by the ADA and CDC announced at the symposium to do exactly that.

ADA Chief Counsel Peter M. Sfikas called the decision a "big win for fluoridation" and acknowledged the California Attorney General's gratitude for the support provided throughout the appeal by the Legal Division. "Our next step," said Mr. Sfikas, "will be requesting the Court to publish the opinion in its official reports so it can be cited as precedent, and of course preparing for the appeal of the case to California's highest court that the plaintiffs have already publicly promised."