The legal status of water fluoridation in New Zealand
The allowable levels of toxic substances, including fluorides, in public water supplies are specified by the NZ Drinking Water Standards.
Water supplies are under the control of territorial authorities – local or district councils. (In Wellington the Wellington Regional Coucnil supplies water to the territorial authorities who then supply it to individual customers) They, AND ONLY THEY, have the legal power to treat water supplies and hence the potential to add fluoride.
Territorial authorities have never has explicit statutory authority to add fluoride to the public water supply. Until 2002, they relied on the Privy Council ruling in 1964 in the case of Attorney-General; ex relatione Lewis v Lower Hutt City  NZLR 116.: that the power to provide “pure water” did not prevent the addition of medication such as fluoride. Although not explicitly stated in the judgment, this was conditional upon fluoride not making the water less “wholesome”, such as through demonstrated adverse health risks.
Changes in wording in the Local Government Act 2002 mean that the Privy Council ruling no longer applies. Councils now have NO demonstrable statutory authority to fluoridate the public water supply.
Moreover, under section 23 of the Health Act 1956, councils have a statutory duty to protect the public from environmental health risks, such as from fluoride (shortened for ease of reading):
23 General powers and duties of local authorities in respect of public health
It shall be the duty of every local authority to improve, promote, and protect public health within its district
and for that purpose every local authority is hereby directed—
(c) if satisfied that any condition likely to be injurious to health exists in the district, to cause all proper steps to be taken to secure the abatement of the nuisance or the removal of the condition:
So, if it is “likely” that fluoride poses health risks, the council is obliged to cease fluoridation. The standard of “likely to” has been defined by the courts as “a real, not fanciful, possibility, but not requiring a greater than 50% probability”.
There is no need for the 110% proof that the Ministry of Health suggests. It is only necessary to show a real possibility of risk. This has been demonstrated repeatedly in international scientific journals, the standard of authority specified by the Ministry of Health, in relation to:
- Heart disease
- Increasing premature birth rates with associated infant deaths
- Arthritis/skeletal fluorosis
- Bone fractures
- Thyroid inhibition
- Neurotoxicity, especially to children
On the basis of current scientific evidence, the burden of proof – real possibility – has been met, and it is the Council’s duty to end fluoridation, in compliance with section 23.
So unless the Ministry of Health can provide scientific evidence, peer-reviewed and accepted by the international scientific community, that every one of these studies is false, councils must stop fluoridation pursuant to section 23 of the Health Act.
And it is irrelevant whether fluoridation reduces tooth decay or not, once a risk to the public health has been established as a real possibility. Section 23 does not allow for “trade-offs” of harm with alleged benefit.
This analysis, with documentation regarding three key areas of harm, can be downloaded here:
The Lewis case
It is important to understand the limits to the power conferred and that only some findings in this case are binding on NZ courts, contrary to the impression given by the Ministry of Health.
Lewis had challenged the power of the Lower Hutt Council to fluoridate water under section 240 of the Municipal Corporations Act 1954, now section 379 of the Local Government Act 1974.
The Privy Council ruled that:
- The reference to “pure” water was to be interpreted as “wholesome” since chemically pure water did not exist;
- The council’s power to treat the water was not limited to making the water more “wholesome” as water but extended to making the water more beneficial to the health of consumers, including adding medication to the water, provided the water does not become “impure” thereby.
Only these two points of interpretation are binding on New Zealand courts.
The Privy Council did not rule that fluoride was not ” medication “: if anything it could be inferred from their judgment that they did consider fluoride a medical treatment. Yet the Ministry of Health maintains they did; and relies on such non-existent ruling in its position on that point. In any case since they held that addition of medication was permitted, the case did not hinge on such a finding, hence again, their ruling on this point, whatever it was, is not binding on any New Zealand court.
The Privy Council also held that:
“The addition of fluoride adds no impurity and the water remains not only water but pure water and it becomes greatly improved and still natural water containing no foreign elements.”
This does not preclude fluoride from also being medication, of course.
Moreover this is a finding on a question of fact, not law, and as such is of no binding precedent value : it can be found to the contrary by any New Zealand court at any time.
Section 2 of the Act prohibits the addition of pollutants. The Privy Council did not rule on this point hence, again, it is open to any court to find that fluorides, or the heavy metal contaminants associated with the substances used, are pollutants under sections 2 and 392 of the current Act. Section 2 defines a pollutant as a substance which contaminates water changing its chemical condition so as to make it detrimental to the health, safety, or welfare of persons using it. Consequently any proven harm would automatically end fluoridation. This is presumably why the Ministry is so determined to deny any harm.