1964 Revisited:

The Supreme Court and Privy Council Decisions

In 1963 and 1964, the Lower Hutt City Council was taken all the way to the Privy Council to determine the legality of adding fluoride to the Council water supply.

At the outset, there was a decision to be made: If the Council was at fault, was it at fault because it was misusing an existing power, or was it exercising a power that it did not legally possess?

As McCarthy J. points out, on the unchallenged evidence that fluoride was highly beneficial to dental health and hence to public health in general, there was no case for the council to answer if an existing power was found to be present.

He sounds almost relieved as he states: "…We are not called upon, as other tribunals have been, to decide between rival view points as to the merits of fluoridation. Here the merits are not disputed. We can only concern ourselves with the legality of the respondent's action."

One of the major points addressed in the decision regards the nature of fluoride. Is it a medicine or isn't it? It was determined that the council was not adding something foreign to the water (i.e., as a medicine) but merely adjusting the level of a substance already present in the water to a concentration that matched recommended optimum levels for public consumption, i.e., one part per million.

McCarthy J. defined "purity" as follows: "…It is a word of wide use: it is used in the sciences, the arts and to a certain extent, in philosophy; but wherever it is used, it denotes that the thing specified is free of everything that is foreign to its true nature or essential character. … But it does not necessarily follow that an article becomes impure if something is added which is not foreign to the true nature or the essential character of the thing specified.

"So fluoride is not a medicine, something "foreign" to the natural water supply, and the decision does not give the council the right to add whatever else it paternalistically likes. If fluoride were not an element in most ground water sources, even microscopically, then the council would not have the power to fluoridate.

One of the first things that strikes me as I move through the various judgments is the total lack of reference to any evidence that fluoride might be harmful; and the extreme praise lavished on both fluoride and on the witnesses for the Lower Hutt Council.

The second thing that strikes me is that this optimum concentration was determined shortly after the Second World War. I have never seen the research that supports this particular concentration, but the fact remains that in the time since the Second World War exposure to fluorides has increased enormously, as tablets, mouthwashes, toothpastes, foods rich in fluorides, and so forth.

In 1963, the Dept of Health Education and Welfare of the Food and Drug Administration, Washington D.C. answered a letter as follows:
"…A minimum daily intake of fluoride has not been established. Above 2mg per day can cause tooth mottling in sensitive persons. …"

A concentration of 1 ppm as recommended would achieve that 2mg per day intake solely on the intake of 2 litres of drinking water as water or as part of prepared food. Fluoride toothpaste is about 1000 times more concentrated than water, and in New Zealand accounts for well over 90% of sales. Swallowing two lots of toothpaste per day by itself would conceivably add close to 2mg of fluoride to the daily intake.

Since the war daily intake of foods such as red meat, tea, coffee, sea food, wine and some beers (all listed as foods which are higher in fluoride content ) has increased considerably. Other products, such as orange juice concentrate, when made up with fluoridated water for resale, also contribute to the total intake.

Several times in the judgement reference is made to the minute amount being added to the water. Yet, in America, the Environmental Protection Agency set 4ppm as the maximum permitted contaminant level of fluoride in water . As the Guardian goes on to comment quoting Professor Paul Connett : "…From a toxicological point of view, the gap between the therapeutic dose - the level at which fluoride is supposed to benefit teeth - and the toxic dose - the level at which it begins to do serious harm - is very small. Usually you want a factor of a hundred between the two. …"

At this point the "minute" addition becomes much more significant as an additive.

On the face of it, it seems to me unlikely that McCarthy J's definition of water purity will be unseated. It is convincingly and lucidly presented. For the purposes of definition fluoride is considered along with other naturally occurring dissolved mineral salts as a substance already present in water, and therefore "not foreign to its essential nature". Once it is accepted that "pure" cannot mean chemically pure as, for example, distilled water is pure, then his definition seems eminently reasonable.

If we are to oppose fluoridation successfully, it seems to me that what we must do is concentrate on demonstrating unequivocally to local authorities - via the ballot box if necessary - that the 1 ppm "optimum concentration for the promotion of public health" is far too high, and that fluoride levels should as a matter of public health be adjusted to an optimum level as close to zero as possible. This would return fluoride to its proper community among dissolved substances such as mercury, arsenic, lead, cadmium and so on.

Just to illustrate, the 1964 appellants allowed the following evidence to pass unchallenged:

"In the present case I was satisfied on the evidence (1) that there is a high incidence of dental caries in New Zealand generally, (2) there is almost a complete absence or at least a high deficiency in the fluoride content of the natural artesian well water supply of Lower Hutt, (3) that the absorption of fluoride has a substantial effect in reducing the incidence of dental caries, especially in young children, (4) there are no deleterious or toxic effects on the human body from the absorption of fluoride more emphatically in the minute proportion of one part to a million, (5) that any surplus fluoride taken into the body is excreted without harmful effects, and (6) that tablets or other vehicles for the taking of fluoride are unsatisfactory in that the required regularity with children would not be achieved and that natural water is the only really satisfactory vehicle"

The case was fought on whether the existing legislation permitted fluoride to be added to the water. Their Lordships were given every reason by the overwhelming evidence for the beneficial effect of fluoridation to look for a way to make it possible, and this they did, by treating it not as a medicine but as an optimising of the level of a naturally occurring ingredient for maximum public benefit.


Fluoride Home Page

The Politics of Fluoride

Fluoride: The Article

Because we can... An(other) Unfortunate Experiment

The Science of Fluoride

Three Questions

Concentration, Dose and Dosage

Fluoride and the Law

1964 Revisited

Privy Council Decision