Attorneys for the Biden administration said Friday they would seek to challenge a court loss last year that could pave the way for the Trump administration to ban the use of fluoride in water.
The Biden administration’s notice, filed Friday with the federal district court in San Francisco, comes just days ahead of a Jan. 21 deadline for the appeal.
While last year’s ruling did not order the Environmental Protection Agency to ban water fluoridation, opponents say it carved out a “clear legal pathway” giving the federal government authority to force local governments to stop adding the chemical to the water supply.
Public health experts have long defended fluoridation as one of the greatest public health achievements of the 20th century. The American Dental Association said last year that research shows it is a “safe, beneficial and cost-effective public health measure” for preventing cavities.
District Court Judge Edward Chen ruled last year that evidence showed fluoride was “hazardous at dosages that are far too close to fluoride levels in the drinking water of the United States,” but stopped short of ordering the EPA to ban the practice.
The judge said he only had the authority under the Toxic Substances Control Act, or TSCA, to direct the EPA to take action against the risk, but not to prescribe the specifics of its response, which could range from a national warning to an outright ban.
“I’m hopeful that the new administration will use the authority that it has under TSCA to follow the lead of Europe and to implement a nationwide ban on water fluoridation,” Michael Connett, an attorney for the groups Fluoride Action Network and Food & Water Watch that had sued the EPA, told CBS News.
Attorneys for the federal government did not say what they plan to argue in its appeal. A spokesperson for the Department of Justice declined to comment on the filing.
It will be up to the incoming Trump administration to decide whether to continue the appeal.
Robert F. Kennedy Jr., President-elect Donald Trump’s pick to head the Department of Health and Human Services, has advocated for removing fluoride from public water supplies and said last year that Trump intends to call for an end to fluoridation.
Trump has said he was open to the idea but has not yet detailed plans. A spokesperson for the president-elect did not immediately respond to a request for comment.
“If the new administration did want to take a different course with respect to fluoridation policies, it has unquestionably the authority to stand down on this appeal, and to initiate rulemaking proceeding to address the risk of fluoridation,” said Connett.
The court ruling in September stemmed in large part from a review published by the National Institutes of Health’s National Toxicology Program, which concluded that “higher levels of fluoride exposure” are associated with lower IQ in children.
While those concerning levels are higher than what is typically added to the U.S. water supply, some opponents worry that the varied ways children consume drinks and food made with fluoridated water could add up to exposure that is too high for many kids.
Fluoridation opponents argue that modern toothpaste is enough to make up for stopping water fluoridation, citing communities that do not add the chemical to their water supply.
Not all local governments have stuck with their decision to stop fluoridating water. In Canada, Calgary’s city council decided to reintroduce fluoride after cavity rates worsened in children.
“I hope this is sufficiently convincing to the leadership in the city of Calgary, Alberta, that they see the harm that stopping fluoridation has happened to the children of their city,” said University of California San Francisco Professor Howard Pollick, in a post by the American Dental Association in 2021, after a study on higher cavity rates in the city.
