“Unreasonable risk of harm” from fluoridation not enough for an injunction. Says Judge.

Whangarei District Council’s (WDC) application for an interim injunction seeking to delay the start of fluoridation until their substantive case has been heard later this year, has been declined.

WDC has been ordered by the Director-General of Health to start fluoridation or face severe fines ($200K plus $10K every day thereafter).

WDC’s application was partly declined on technicalities (see below) but the more important consideration was the risk to public health which was dismissed by Justice Grau.

The witnesses for WDC, Professors Lanphear and Grandjean, two of the world’s leading experts on developmental neurotoxicity, relied upon by the US Environmental Protection Agency (EPA) for their expertise on lead and mercury respectively, provided strong evidence that babies and infants are being harmed by water fluoridation. While the judge acknowledged these expert witnesses, she dismissed their evidence because the Ministry of Health had “considered” their views as if that were enough and the Ministry of Health was beyond reproach. To add insult to injury, the MoH reviewer, Dr Ian Town, is not a developmental neurotoxicologist – he is a lung specialist, who relied in part on the Kumar (2023) study which has been exposed as scientific fraud internationally.

The judge went on to explain that she did not need to consider the actual scientific evidence because she said that judicial review is a supervisory role concerned with the process followed rather than the merits of the decision under review, particularly where it involves experts. She cited one case where only one side was considered “expert”, and another where the Ministry of Health had been found to be in step with international developments (neither case related to water fluoridation). WDC’s case, however, relied on international experts who are more credentialed than any of the Ministry of Health witnesses, so in this case, it is the Ministry of Health that is out of step with international research.

Justice Grau noted that a ruling by the Federal District Court of California saying that “Although it concluded that water fluoridation (at the level applied in New Zealand) posed an unreasonable risk of injury to the health of the public in the United States, it did not conclude that fluoridated water was injurious to public health.”

It appears Justice Grau is saying that it is acceptable to continue fluoridation despite it posing an unreasonable risk of injury to people’s health because the court did not find definitively that fluoridation harmed health. [Paragraph 72]

Describing the case, Justice Grau says it is “a first instance decision (now under appeal) that is neither directly applicable nor particularly determinative.” This is incorrect, while it is a first instance decision, the case is not under appeal.  The EPA has indicated that it intends to appeal, but that is now unlikely under the new administration.

She also said “The US Court did not make any order to cease fluoridation but only required the EPA to consider possible regulatory responses.” However, the US Court had no power under the legislation to make any such order. As such, the US court ordered the EPA to implement regulatory action to remove or reduce the risk posed by fluoridation, which was the only power the court had at its discretion. It is also perplexing that Justice Grau would say that the case was not applicable or determinative, when the US fluoridates at a lower level than New Zealand.

At least Justice Grau did acknowledge that “it appears clear, and likely uncontroversial, that there is an association between fluoride at a high level of exposure and adverse consequences to people”. In contrast, Dr Town, Chief Science Advisor for the Ministry of Health, who gave expert testimony for the Crown said “that the statements of the applicant’s witnesses—that there is no reasonable doubt that developmental neurotoxicity is a serious human health risk associated with elevated fluoride exposure—are incorrect.” Dr Town is completely out of step with the whole scientific world. The only uncertainty now is at what level fluoride starts to cause neurological harm.

Another justification given by Justice Grau for not granting the application is that half of New Zealand has been fluoridated for decades. While that is the case, there is no evidence to presume that means it must be safe. Lead was added to paint and petrol for decades and was continued in New Zealand for 26 years after it had been stopped in the US because New Zealand authorities did not have their own evidence that it was unsafe.

One technical consideration by the Judge was the fact that the injunction was being sought mere days before fluoridation was to be introduced and that granting the injunction would put WDCin an unlawful position.

WDC’s lawyer explained that the councillors were aware of another case that was pending and did not want to commit rate-payers money if they did not need to. He also explained that the most compelling evidence has been published in the second half of last year and WDC acted quickly upon that new, irrefutable evidence. Justice Grau had no sympathy for the situation that WDC were in and said they had taken a risk and now that risk had gone against them.

But when all is said and done, the judge has allowed a poisonous substance to be added to the drinking water of tens of thousands of Whangarei residents when there is overwhelming scientific evidence that fluoridation poses an unreasonable risk to developing brains of New Zealand children.

See Ruling by Justice Grau.