By Jeremy Schwartz
Peninsula Daily News
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The panel of judges in the state’s Division II Court of Appeals last week agreed with a previous ruling that fluoride is not a drug and as such does not need approval from the federal Food and Drug Administration, or FDA, to be used in public water supplies.
The plaintiffs in the case — Protect the Peninsula’s Future, Clallam County Citizens for Safe Drinking Water and retired Sequim physician Eloise Kailin — oppose fluoridation in the water supplies of the cities of Forks and Port Angeles and filed suit against the two cities in Clallam County Superior Court in May 2011 to stop the practice.
The plaintiffs argued that fluoride is a drug and could not be added to either water supply without FDA approval.
The Superior Court dismissed the case, saying such regulations do not apply to public water supplies, after which the plaintiffs, represented by Tacoma-based attorney Gerald Steel, petitioned the state Supreme Court to hear it.
The high court declined, sending the case to the Division II Court of Appeals.
The appellate court decision, handed down Wednesday, is part of the third court case fluoride opponents have filed against Port Angeles after the city started adding fluoride to its water supply in 2006.
The most recent case is the first the plaintiffs have filed against the city of Forks, which has fluoridated its water supply for nearly six decades.
Kailin said Friday she did not have exact figures on how much these court cases have cost to work through, though she said all the money spent has been acquired through private donations.
“If we [go] back to 2006, it certainly is measured in the tens of thousands [of dollars],” Kailin said.
Steel said his clients have 30 days to petition the state Supreme Court to hear the case, though he said a final decision to file such a petition has not been made.
“There’s a lot of detail in the decision we have to study before we decide what we want to do next,” Steel said.
However, he said he was hopeful that if petitioned, state Supreme Court judges would choose to hear the case.
This is because the Supreme Court heard a separate case brought by the same plaintiffs claiming the choice to add fluoride to Port Angeles’ water supply should be put to Port Angeles voters.
The state Supreme Court ruled against the plaintiffs in that case in September 2010.
Appeals court ruling
In their Wednesday ruling, the panel of three appellate judges cited a 5-4 1954 state Supreme Court decision, Kaul v. City of Chehalis, in which the high court upheld a trial court decision dismissing a lawsuit brought by a Chehalis resident opposed to the city adding fluoride to its water because fluoride was not held to be a drug.
The appellate court also denied both the plaintiffs’ and the two cities’ requests for attorneys’ fees and for sanctions in the cities’ case.
The court said the plaintiffs did not prevail in the case and so should not get attorneys’ fees, and the plaintiff did not act in bad faith in filing the 2011 lawsuit, so sanctions against the plaintiff that the city requested are not warranted.
Port Angeles City Attorney Bill Bloor said he was satisfied with the appellate court opinion.
“We’re of course pleased the appellate court agreed with us,” Bloor said. “We think it was a correct decision.”
Neither Bloor nor Forks City Attorney Rod Fleck could estimate Friday how much either city has spent dealing with this case.
Fleck said the bulk of the work has been handled by attorney Roger Pearce with Seattle-based law firm Foster Pepper PLLC, with which both cities have contracted.
Opponents have historically argued that extended consumption of fluoride can cause adverse health affects, such as brittle bones and teeth spotting, while advocates have said fluoride is added to water supplies to fight tooth decay.
Reporter Jeremy Schwartz can be reached at 360-452-2345, ext. 5074, or at firstname.lastname@example.org.