NZ Supreme Court Building, Wellington
The NZ Supreme Court has delivered its judgments and local anti-fluoride campaigners (and their big business supporters) seem to have come to the end of the line with their legal actions to prevent community water fluoridation (see Supreme Court rules against Taranaki anti-fluoride campaigners and Supreme Court rules South Taranaki fluoridation allowed).
Specifically, the Supreme Court delivered two judgments rejecting three appeals by NZ Health Inc. These appeals arose from High Court rejection of challenges by New Health NZ to prevent South Taranaki District Council from fluoridating drinking water in Patea and Waverly. While dealing with local situations these legal actions, ongoing since the end of 2012, inhibited other councils throughout New Zealand from making fluoridation decisions for fear of the cost involved in possible legal defences.
In effect, the Supreme Court judgements free up other councils to go ahead with fluoridation decisions, although the impending legislation transferring decision-making to District Health Boards may also cause delays.
The Supreme Court judgements were welcomed by health authorities and many New Zealanders concerned about the time wasting tactics used by anti-fluoride campaigners and their big business supporters.
Nature of the judgments
Court judgements can be complex but the Supreme Court provided a press release to help readers understand this case (see Fluoridation: New Health NZ v South Taranaki DC). This also provides a brief history of the legal actions since 2012.
Several things stand out to me.
The courts cannot rule on the science
The scientific arguments commonly presented by anti-fluoride campaigners are not considered in this judgement – this is as it should be. Courts do not decide the science.
Through this whole procedure lawyers for New Health NZ presented a litany of misrepresentations of the science we have come to expect from anti-fluoride campaigners. Apparently these campaigners are so used to relying on arguments misrepresenting the science they just could not help themselves even though the courts do not arbitrate on scientific matters.
I have always considered this somewhat strange. The strongest arguments that anti-fluoride campaigners can present relate to freedom of choice and the rights of minorities in social decisions. Yet they always seem to lead with misrepresentation and distortion of the science and only fall back to their strongest arguments when these misrepresentations are challenged by actual consideration of the science.
The statutory power of councils
New Health NZ argued that councils do not have the statutory authorisation to add fluoride to drinking water. The Supreme Court majority dismissed this ground for appeal. The dismissal was based on:
“the Council’s general power of competence in s 12 of the Local Government Act and in light of its duty under the Health Act to protect, promote and improve public health in its region. The relevant provisions had to be interpreted against the background that fluoridation had been lawful in New Zealand for decades prior to enactment.”
Claim that fluoridation breaches the NZ Bill of Rights.
On this question the Supreme Court:
“considered that the conferral of a statutory power to fluoridate water to levels prescribed by the drinking water standards was a justified limit on the right protected by s 11 of the Bill of Rights Act”
Or that:
“the Bill of Rights Act meant that local authorities could fluoridate water only where doing so in the particular district would be demonstrably justified in terms of s 5, an assessment which may depend on the local conditions.”
So, although there were subtle differences in the arguments of separate members of the court this claim by New Health NZ was rejected.
Not a unanimous decision
No doubt anti-fluoride activists will make much of the fact that there were differences between members of the Supreme Court on some details. I don’t think such differences are at all surprising or will necessarily give these asctivists the comfort they will attempt to derive from them. One of the judgements (NZSC59.pdf) gives detials of the arguments presented by sperate court members
The issues considered by the Court relate to interpretations of the Health Act and the NZ Bill of Rights. This involves considerations of ethical issues and the practical implementation of democratic procedures. There is no pre-ordained right or wrong answers to such matters and they are normally decided by prevailing procedures, ethical approaches and political matters.
It is possible to argue wither way on such issues. This is why I consider anti-fluoride campaigners make a mistake in their concentration on scientific matters which can easily be decided (and which they misrepresent) . If they put more effort into debating the ethical and political aspects they might have more success in winning people to their arguments and in achieving their political demands.
Who has been financing this legal action?
The Supreme Court press release describes New Health NZ, the anti-fluoride group which fronted the legal action, as a “consumer advocacy group.” This is factually wrong. New Health NZ was formed by the NZ Health trust to front such actions but the NZ Health Trust is, in fact, a lobby group for the “natural”/alternative health industry in New Zealand. It is effectively representing big business and not consumers. (Although, strangely, it has registered itself as a charity – perhaps this should be challenged by someone).
In fact, very few consumer advocacy groups could afford such legal action. The cost of defending against this action was substantial. South Taranaki mayor Ross Dunlop said the legal battle had cost the council at least $300,000-$350,000. The Ministry of Health assisted with funding but one can see how the fear of such legal costs has scared councils from making fluoridation decisions in the six years these issues have been before the High Court and then the Supreme Court. Even in this last case, the Supreme Court ordered New Health NZ to pay the Council only $20,000 towards costs.
The New Zealand Health Trust has funded, through New Health NZ, this legal battle to the tune of about $180,000 per year. I described this in my articles Who is funding anti-fluoridation High Court action?, Corporate backers of anti-fluoride movement lose in NZ High Court and Anti-fluoridationists go to Supreme Court – who is paying for this?
The financial returns from the NZ Health Trust and New Health NZ clearly show that money is flowing from the “natural”/alternative health industry (which is big business), via the NZ Health Trust (a lobby group for that industry) into New Health NZ which has then used it to find their anti-fluoridation legal activity to the tune of about $180,000 per year ($340,000 in 2017).
This graph shows the correspondence of grants received by New Health NZ with grants paid by the NZ Health Trust.
The size of the grants received by New Health NZ corresponds to payments for consultancy & professional fees. It is most likely this represents the funding used for the legal campaigns against community water fluoridation.
A clear example of big business funding trying to deny a safe and effective social health programme for New Zealanders
Open Parachute 
Intelligence prevails over Paulie and his mindless minions yet once again. Outstanding!
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Ken, I assume you’ve seen the outrageous misrepresentation FFNZ has put out in its “press release” on this ruling.
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Yes. Rather desperate and won’t fool anyone in NZ as the media coverage has been clear. It seems to have fooled a few people in Australia though.
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I never cease to be amazed by the brazenness of their outright lies. It’s incredible. Here’s a link to a respected site for older Americans where they’ve been posting hogwash, including the FFNZ “PR”. Osmunson has chimed in. “CaryAnne” is Karen Spencer. Johnny and I have been going at it with them.
https://community.aarp.org/t5/Brain-Health/Fluoride-Demand-AARP-Take-Action/td-p/1528688/highlight/false/page/2
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Hello all. FFNZ press release shows their usual selective misrepresentation of published material. Should be no surprises there. Of course, no mention of dismissal of their appeal against the Medicines Act amendment or the award of $20 000 costs against them.
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Yes, Leonard – it is very childish of them.
In NZ they just make fools of themselves because there have been plenty of media reports providing the fact they lost big time. I don’t know if is even worth analysing the judgements to show how they have been dishonest.
They may have fooled a few of their followers overseas where the FFNZ press release has been reported. But even there Paul Connett at FAN has had to issue a statement clarifying (?) the situation because of the crazy FFNZ press release.
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Ken, do you have a link to Connett’s statement? I haven’t seen it.
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This was in his last email from FAN “Additional Information on New Zealand Supreme Court Ruling”
june 29, 2018
Dear Ken:
Some of our readers were puzzled yesterday by FAN NZ broadcasting the Supreme Court verdict on fluoridation as a victory rather than a defeat. After all the Supreme court ruled against the plaintiffs (New Health New Zealand) in their efforts to prevent South Taranaki from fluoridating its water.
Let me explain, in my view, this is a classic case of losing a battle but winning the war.
In this case, the war is over the ethics of fluoridation. For opponents of fluoridation, this practice violates the individual’s right to medical or human treatment. For proponents the counter-argument has been that fluoride is not a medicine and fluoridation is not a medical treatment. Proponents further argue that even if fluoride was a medicine people are not forced to drink the fluoridated water.
In the following two paragraphs (99 and 100) in the Supreme court ruling it is clear that the judges side with opponents on this matter and this finding will have huge ramifications worldwide. In other words it is a huge victory for us. Meanwhile, proponents will celebrate their local victory.
[99]
Applying this approach, we find that fluoridation of drinking water is the provision of medical treatment. It involves the provision of a pharmacologically active substance for the purpose of treating those who ingest it for dental decay. We agree with the Courts below that people who live or work in areas where fluoridation occurs have no practical option but to ingest the fluoride added to the water. So
the treatment is compulsory. While drinking water from a tap is not an activity that would normally be classified as undergoing medical treatment, we do not consider that ingesting fluoride added to water can be said to be qualitatively different from ingesting a fluoride tablet provided by a health practitioner.
[100]
We conclude that fluoridation of drinking water requires those drinking the water to undergo medical treatment in circumstances where they are unable to refuse to do so. Subject to s5, therefore, s11 of the Bill of Rights Act is engaged.
To see how that local victory was won you will have to read the paragraphs 101 – 144 in the ruling. But basically, they argue that the individual right to informed consent to medication (section 11 of the NZ Bill or Rights) may in certain circumstances be over-ridden by the interests of the larger community (see section 5). However, the judges somewhat undermined these arguments by earlier acknowledging in paragraph 10 that the benefits of fluoridation are largely topical, and as such allowing individuals the right to informed consent in this case would not deprive the rest of society of fluoride’s perceived benefits since there is universal access to fluoridated toothpaste.
Another important point is that when the issue was being heard the US-government funded study by Bashash et al., 2017 had not been published. Had the judges known about this important and rigorous study, it is questionable whether they would they have felt it was in the interests of the larger community to support a practice which would lower the IQ of its children?
Meanwhile, below are more details and arguments from FAN –NZ.
Paul Connett, PhD Executive Director Fluoride Action Network
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Thanks, Ken. Typical spin. Opinions of justices presented as reasoning for a ruling on points of law brought before them are just that, opinions of lawyers….not rulings. They carry no more weight than opinions from anyone else of equal intelligence and understanding of the issue. The final ruling does carry the weight of law. The ruling by the justices was that the two points of law presented by the antifluoridationists were inadequate to warrant overturn of the lower court ruling against the petitioners. Connett can try to twist and contort this as much as he wants, but the bottom line is that opinions are opinions, and rulings are rulings.
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Another win for the powers that be that no amount of science or logic prevails when powerful interests always have a way of winning when their interests (money) is at stake.
Just answer this simple question. Was fluoridation of water supplies a result of Edward Bernays being employed by ALCOA to get rid of HFSA byproduct that they could no longer dump anywhere in the environment?
It all flows from there and you cant rewrite history. As much as you try to portray water fluoridation as an act of health authority concern and action on a public health issue. This is trying to fool the masses and to prevent them from taking action on this despicable manufacturing of consent.
Show us a single peer reviewed journal calling for water fluoridation prior to big business eager to dispose of their poisonous and unusable byproduct of smeltering and fertilizer industries.
In my home state of Victoria in Oz, the water board and related health authority have taken the drastic measure of disqualifying any peer reviewed science during water fluoridation reviews that do anything but shower praise on dental outcomes of water fluoridation. Automatically disqualifying journal studies of HFSA or any journal studies of effects on anything other than teeth. Eventhough water we drink is clearly absorbed and used throughout the human body and doesn’t idiotically just go into teeth.
The health authorities have been subverted by predominantly Edward Bernays sustained and very well carried out campaign on behalf of his client ALCOA. Likewise on the legal front, big business have ensured a continuation of this racket as there’s nothing more or less at stake than big dillars to get rid of HFSA. Using Fluoride as equal term to HFSA is in line with the lies and deception by the Pro-HFSA lobby paid directly by big business to maintain status quo as long as possible.
My water Authority’s lengthy document on water “fluridation” burries the single mention of HFSA with more than thirty or so pages single mindedly praising water “fluoridation” by use of anecdote and false logic argument. The science is only obliquelly mentioned in passing and no direct reference provided. If you’d think the water authority is single mindedly set on nothing other than continued dumping of HFSA into drinking water at our expense, you’d be spot on. Who knows the limits of big business money..maybe in ten years they wont have to bother lying and just tell us to STFU because they’re in power and not us. In the meantime the game continues and big business saves billions of dollars by being able to dump at least some part of their toxic byproduct diluted into drinking water supplies. Very handily, drinking water supplies have their own goverment authority not over-ruled by EPA.
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r3sponse, you claim:
“In my home state of Victoria in Oz, the water board and related health authority have taken the drastic measure of disqualifying any peer reviewed science during water fluoridation reviews that do anything but shower praise on dental outcomes of water fluoridation.”
Could you please provide a quote and link for this measure declared by these authorities. Failure to do so will force me to conclude you are lying – it is, after all, a very unusual requirement.
Also, please justify your need for studies of the effect of fluorosilicic acid on the body and teeth (beyond what is already known about such a concentrated and corrosive acid). After all, no one but an idiot would drink this stuff for their body or teeth.
Finally, what the hell has your comment got to do with my post about the NZ Supreme Court judgments?
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Also I point out Ken’s use of “big business” as some kind of big deal.. when the alt health companies supporting this don’t have any profit motive that I can think of to do this. So why use the “big business” tactic to somehow make a point? What is the point? If some single person had paid for this supreme court action you would have attacked that also. What difference does it make in this situation?
A good example of big business interests doing something to hide culpability for law suits or to find a solution to dumping very accidic chemicals is ALCOA and the history of how fluoride was promoted by “big business” as a way to divert court action against them for worker harm.
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Jay, I would suggest you are being naive but, of course, realise you also have a dog in this fight as an opponent of community water fluoridation.
Your question would be more genuine if you yourself could have ascribed a motive for the “natural”/alternative health industry putting more than $100,000 (one year over $300,000) into attempting to prevent the introduction of a safe and effective social health measure.
This industry makes a profit out of a certain anti-science, anti-accepted health measure ideology. Of course, they will promote that ideology wherever they can.
You other alternative simply does not hold water. I do not see any chemical company attempting to fight any move to stop or prevent acceptance of CWF.
It is the health experts and authorities who have opposed the legal actions of this lobby group. With ministry and government support (whose interests may of course be more mercenary as CWF is known to reduce public health costs).
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