Tag Archives: NZ Health Trust

Anti-fluoridationists go to Supreme Court – who is paying for this?

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Main street, Patea. Photo credit: TrekEarth

The costly battle to prevent fluoridating the water supply of two small Taranaki towns has gone on for four years – and it looks like continuing.

Last October the South Taranaki District Council won a costly four-year court battle for the right to fluoridate the water supplies of Patea and Waverley. New Health NZ, which took High Court action to prevent fluoridation,  appealed several times against the decisions that went against them. Now the Supreme Court of New Zealand has granted New Health NZ the right to appeal those decisions (see Supreme court grant right for another appeal for New Zealand’s fluoride “test case”).

Hopefully, a Supreme Court rejection of their appeals will put an end to the matter. But it has been an expensive process. South Taranaki District Council’s corporate services group manager Phillippa Wilson said: “The costs to date are in excess of $320,000.”

Follow the money

If there is any justice the courts this time will award costs to the Council. But how is it that an anti-fluoridation group can afford to take such costly legal action – and continue taking it despite many defeats?

The answer is big business backing. New Health NZ is not supported by donations from anti-fluoride activists. It is financed by big business – specifically the “natural”/alternative health industry through their lobby group, the NZ Health Trust. This lobby groups set up New Health NZ as an incorporated society whose functions seems to be almost exclusively the campaign against fluoride.

It is quite easy to see the money flows (although specific details are not available) because the annual statement of income and expenditure for the NZ Health trust and New Health NZ are available on-line.

Between 2013 and 2016 the NZ Health Trust received grants ranging from $190,000 – $320,000. Always round figures indicating lump sum grants. It has listed “consultancy and legal expenses” ranging between $74,000 and $208,400. I assume these have been for their other ongoing campaigns on Natural and Traditional Health Products legislation.

But the interesting figure is the “Grants and Donations” made by the NZ Health trust. This was zero in 2013 but has ranged from $110,000 – $130,000 between 2014 and 2016.

Those figures fit in with the declared “Grants received” by New Health NZ: zero in 2013, $100,00 in 2014 and $95,000 in 2015.  Again – round figures indicating lump sum payments instead of donations. Most of this was paid out as “Professional and Consultancy Fees” by New Health NZ.

This fits in with the sort of legal expenses involved in taking these High Court actions. The graph below illustrates the movement of funding from the “natural”/alternative health industry, through the NZ Health Trust – New Health NZ to legal funding. No transfers occurred in 2013 and we do not yet have the New Health NZ financial report for 2016.

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The “natural”/alternative health industry in New Zealand was estimated to be worth $1.4 billion dollars in 2015 (see Inside story: Alternative medicines, quackery or not?). It is also growing fast – 40% in the five years up to 2015. As a big business, with a strong ideological flavour, it can afford and is motivated to take the sort of legal action we have seen in South Taranaki.

But the influence of the “natural”/alternative health industry does not stop at funding legal actions. According to the 2015 article, there are also a bewildering:

“multitude of alternative health practitioners such as homeopaths, naturopaths, osteopaths, chiropractors, acupuncturists, iridologists, reflexologists, aromatherapists, massage therapists and goodness knows who else.”

“ACC payments to osteopaths, chiropractors and acupuncturists alone have more than doubled in the past decade and are now around $40 million a year.”

Have a look at the huge number of submissions on fluoridation made to local councils over the years – or even the submissions to the Parliamentary Health Committee considering current legislative changes to fluoridation. You will see large numbers of “alternative health professionals.” They have the ideological motivation – and, as self-employed “practitioners,” they seem to have the time for such activism.

Then look at the propaganda disseminated by these activists – much of it comes from publications and websites of the “alternative” health industry. Or look at the main US anti-fluoride activist group – the Fluoride Action Network (FAN). It receives the bulk of its funding from Mercola.com – a well established alternative health company.

An unholy alliance?

Most New Zealanders have had a gutsful of the never-ending fluoridation issue. Local councils certainly have. After the consultation fiasco in Hamilton one councilor’s recommendation to other councils was:

“If you can stay out of the fluoridation debate, stay out of it, it’s an absolute nightmare.”

This “debate” has only gone on as long as it has because of an alliance between big business – the “natural”/alternative health industry – with big pockets, and ideologically motivated activists on the ground able to swamp decision makers with meaningless submissions.

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Commercial and ideological support of anti-fluoride activity

Fluoride Free NZ (FFNZ) promotes a list of “NZ Health Professionals who are calling for an end to fluoridation.” I am generally cynical about such endorsement lists, but the details in this list do give a picture of the commercial and ideological alignment of the FFNZ supporters and activists. So I did my own analysis, dividing the list into those described as “Science and Environmental PhD Professionals”, “NZ Dentists, “NZ Doctors” and Alternative health professionals (Chiropractors, naturopaths, Homeopaths, etc.).

Of course, this is approximate as, for example, some listed as doctors may have specialised in one or another alternative fields. The pie chart below shows the distribution of FFNZ supporters among these groups.

Clearly with such a large proportion of supporters coming from alternative health fields this above distribution is not representative of professionals in general, let alone health professionals. However, anyone who has looked at the anti-fluoride movement or debated with anti-fluoride activists would not be surprised as “natural”/alternative health arguments and sources are frequently used.

I wonder, though, to what extent local body councillors are aware of this commercial and ideological orientation when considering submissions they get on the fluoridation issue. I suspect they aren’t. Yet groups like FFNZ engineer these submissions from their supporters – often providing templates for individuals to sign – and usually dominate the submission process.

Personally I think this is a defect in our system of representative democracy – councils should actually insist on declarations of conflict of interest, details of employment and commercial interests from submitters. Their failure to do this explains how some local bodies, like the Hamilton City Council, have unwittingly been captured by ideological and commercial interests from the “natural”/alternative health industry during such submission processes.

Financial links

Declaration of conflicts of interest and details of employment, etc., may to some extent help identify big business interests financing this sort of submission in future. At the moment, we are largely left to speculate. However, there are financial data available showing the money trail involved in at least one anti-fluoride campaign – the High Court case against  the South Taranaki District Council aiming for a judicial review of a decision to fluoridate water supplies in Patea and Waverley (see Who is funding anti-fluoridation High Court action? and Corporate backers of anti-fluoride movement lose in NZ High Court).

This action was taken by New Health NZ – an incorporated body set up by the NZ Health Trust – In November 2013. Statements of financial performance of these two organisations are available online and show the following movements of large amounts of money during the year to March 2014. NZHT As the NZ health Trust is a lobby group for the “natural”/alternative health industry the grants it receives must come out of the profits of this industry which is actually a big business in New Zealand. Although the financial statements do not identify sources and recipients the $100,00 grant to New Health NZ clearly came from its parent body and is included in their declared $125,ooo grants and donations.

The $95,156 paid out by New Health NZ in professional and consulting fees would have covered the costs involved in their High Court action. So this is a clear example of pretty direct funding of anti-fluoride activity (the High Court action) by corporate interests – the “natural”/alternative health industry.

But none of the reporting of this High Court action identified the commercial interests involved. Readers were given the impression that New Health NZ was just another one of these anti-fluoride activist groups and possibly assumed funds for the legal action came from donations.

Again, this is a flaw in our representative democratic system. There should be more transparency of financial links. Corporate interests should not be able to hide behind astroturf organisations and the dishonesty that their actions are the result of concerned citizens and not the ideological and commercial interests of big business.

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Corporate backers of anti-fluoride movement lose in NZ High Court.

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Image Credit: 3 News NZ

New Zealand anti-fluoride activists (and their industry backers) suffered a signficant blow with the release of a High Court Judgement on Friday. This Judgement found that all the arguments used by New Health NZ attempting to prevent fluoridation  of the water supplies in Patea and Waverly had failed.

Readers can download this 43 page judgement – I have included the Summary and Conclusions at the end of this post.

Not about the science

Commenters can easily slip into arguments this is a judgement on the scientific merits or problems of fluoridation. It isn’t.  Justice Rodney Hansen says:

[5] It is important to make it clear at the outset that this judgment is not required to pronounce on the merits of fluoridation. The issues I am required to address concern the power of a local body to fluoridate drinking water supply. That is a legal question which does not require me to canvass or express a view on the arguments for and against fluoridation.

The failed arguments put forward by New Health NZ did not relate to the science but to legal issues. Specifically they argued councils do not have the legal right to make decisions on fluoridation, or if they do this is a breach of the NZ Bill of Rights Act (NZBORA).

Justice Hansen’s judgment that councils do in fact have the right to make decisions on fluoridation is quite detailed – and well beyond my legal ability so I will not comment on it.

Medicine and the right to refuse

Justice Hansen’s  judgments on the NZBORA are clear to the layperson. Inclusion of medical treatment in the NZBORA “was a specific response to the atrocities of the Nazi concentration camps.” However:

[80] In my view, fluoridation cannot be relevantly distinguished from the addition of chlorine or any other substance for the purpose of disinfecting drinking water, a process which itself may lead to the addition of contaminants as the water standards themselves assume. Both processes involve adding a chemical compound to the water. Both are undertaken for the prevention of disease. It is not material that one works by adding something to the water while the other achieves its purpose by taking unwanted organisms out.

[81] The addition of iodine to salt, folic acid to bread and the pasteurisation of milk are, in my view, equivalent interventions made to achieve public health benefits by means which could not be achieved nearly as effectively by medicating the populace individually. . . . All are intended to improve the health of the populace. But they do not, in my view, constitute medical treatment for the purpose of s 11″ [the relevant section of the NZBORA].

Even if the “medication argument” was relevant the “right to refuse” is irrelevant for fluoridation:

“Provided it does not have consequences for public health a person has the right to make even the poorest decisions in respect of their own health. But where the state, either directly or through local government, employs public health interventions, the right is not engaged. Were it otherwise, the individual’s right to refuse would become the individual’s right to decide outcomes for others. It would give any person a right of veto over public health measures which it is not only the right but often the responsibility of local authorities to deliver.”

Appeal – the fly in the ointment?

In principle this should remove any legal or judicial questions that may have concerned councils. They should now be able to go ahead with fluoridation. The Hamilton City Council,  got itself into a mess last year by deciding to stop fluoridation and was then forced into allowing a referendum which showed almost 70% support for fluoridation. The Council delayed putting the referendum result into effect citing the High Court case. They should now have no excuse to ignore the referendum result.

Unfortunately, New Health NZ will appeal the judgment – and this give wriggle-room to anti-fluoridation councillors, and councillors worried they may still yet face costly legal action, to argue that fluoridation remain suspended.

And that is most probably their intention with the appeal. New Health NZ must realise that the thorough judgment really gives them no room to pursue their arguments. But tactically this appeal could continue the hiatus situation faced by Hamilton and other councils. A decision on the appeal could be delayed for another year or so – meanwhile a number of New Zealand cities could be denied the advantages of a well proven and safe social health measure.

That likely motive is politically cynical and I hope the appeal decision will award costs against New Health NZ for that reason. Mind you, a simple analysis of the links of New Health to the corporate interests of the “natural” health industry shows cost is not a problem for them.

The deep pockets of the anti-fluoridationists

A while back I described the links between New Health NZ and the “natural” health industry – see  Who is funding anti-fluoridation High Court action? Specifically, New Health NZ is a creation of the New Zealand Health Trust – a political lobby group financed by the “natural” health industry.

This trust is also registered as a charity – which means we are all subsidising their campaigns via their tax exempt status. (Their charitable status really needs challenging).

However, the financial returns available on the NZ Charities Register shows large grants to the trust which in effect pay for their legal expenses (see figure below for year ended 31 March 2013).

One report estimated the cost to the South Taranaki District Council of this High Court action was about $200,000. Relatively small change for the corporate funders of the NZ health Trust/New Health NZ – but certainly large enough to scare individual councillors.

The government should recognise that such a David vs Goliath situation gives an unfair advantage to these corporate interests. This, together with a highly motivated and organised group of anti-fluoride activists enables individual councils to be picked off one by one by a combination of political and financial pressure.

Most councils would prefer the responsibility of decisions on fluoridation be handed over to central government. The find the continual re-litigation of the issue by anti-fluoride activists frustrating, time-consuming and expensive. So far the current government has resisted these call. Perhaps, though, a useful interim step would be for central government to indemnify local bodies on the fluoridation issue.

This would remove the financial pressure of the sort used by the NZ Health Trust/New Health NZ on cash-strapped local councils.  The anti-fluoride movement would then be forced to deal with central bodies which have more substantial financial backing and better legal and scientific resources.


Judgement summary and conclusions

[116] New Health has challenged the Council’s decision to fluoridate the drinking water of Patea and Waverley on the grounds that:

(a) There was no legal power to do so.
(b) If there was power, its exercise by the Council was a breach of the right to refuse medical treatment in s 11 of NZBORA.
(c) In making the decision, the Council failed to take into account relevant considerations.

[117] I have rejected all grounds of challenge. I have concluded that there is implied power to fluoridate in the LGA [Local Government Act] 2002, as there had been in the antecedent legislation, the Municipal Corporations Act 1954 and the LGA 1974. The Health Act confirms that fluoride may be added to drinking water in accordance with drinking water standards issued under that Act. The power to fluoridate drinking water is not a regulatory function; it does not require express authority. Nor does a decision to fluoridate require the consent of the Minister of Health under the Medicines Act as water is not a food for the purpose of that Act.

[118] I have concluded that the fluoridation of water is not medical treatment for the purpose of s 11 of NZBORA [NZ Bill of Rights Act]. While I accept that fluoridation has a therapeutic purpose, I conclude that the means by which the purpose is effected does not constitute medical treatment. I am of the view that medical treatment is confined to direct interference with the body or state of mind of an individual and does not extend to public health interventions delivered to the inhabitants of a particular locality or the population at large. I see no material distinction between fluoridation and other established public health measures such as chlorination of water or the addition of iodine to salt.

[119] In the event that, contrary to my view, fluoridation does engage the right to refuse medical treatment, I discuss whether in terms of s 5 of NZBORA the power to fluoridate is a justified curtailment of the right to refuse medical treatment. I conclude that it is. The evidence relied on by the Council shows that the advantages of fluoridation significantly outweigh the mild fluorosis which is an accepted outcome of fluoridation.

[120] Finally, I examine whether the Council failed to take into account relevant considerations in reaching its decision. I am of the view that the Council was not required to take into account the controversial factual issues relied on by New Health. There is, nevertheless, a plenitude of evidence to show that the Council carefully considered the detailed submissions presented and reached its decision after anxious consideration of the evidence and careful deliberation.

Result

[121] New Health’s application to review the Council’s decision fails.

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