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A very brief legal history of fluoridation in the UK

Early days.

From the late 1960s water fluoridation in England and Wales was under the control of Local Authorities, but this was transferred to Area Health Authorities in 1974. The legal framework under which fluoridation now operates in the UK is based on 'enabling' legislation in the Water (Fluoridation) Act of 1985.

This stipulated which chemicals it was permissible to be used to fluoridate public water supplies, but left the decision open to Water Companies whether or not they would actually carry out the process, and if so, where. Despite this, no new schemes have been introduced since 1985.

Defying the legislation

Despite the wish of Parliament to increase fluoridation, many water companies refused to comply with requests to fluoridate their supplies. In the Scottish case of McColl v Strathclyde Regional Council (1983) the presiding Judge, Lord Jauncy, held that fluoridating water supplies was outside the remit of the water companies.

Between 1987 and 1992, requests from seven of the former English Health Regions, as well as the whole of Scotland, Wales and Northern Ireland to fluoridate public water supplies were ignored or declined by the Water Company.

In 1998 a judicial review of Northumbrian Water’s decision not to fluoridate supplies at the request of Newcastle and North Tyneside Health Authority and several others confirmed that water companies had absolute discretion on whether or not to fluoridate.

In this landmark case Mr Justice Collins said, ‘In the exercise of its discretion, the respondent water company is entitled to reject the applicant health authority’s proposal to extend the artificial fluoride in its water supplies. It does not have a public body duty and is entitled to take the interests of its shareholders into account’. This was intolerable to the Government, and it determined to address what it called the `shortcomings in the effectiveness of the legislation’ as soon as possible.

The gloves come off - forcing water companies to fluoridate.

Since then the Government has gradually tightened its grip on the right of the public and of the commercial Water Companies to decide what they want, or are prepared to tolerate. In 1991 the Water Industry Act restated the law on water fluoridation, but still left the decision whether or not to fluoridate their product to the discretion of the Water Companies.

But by 2003, the Health Sector had lost patience, and persuaded Parliament to strengthen its power to dictate its demands to the Water Companies. In the 2003 Water Act,Strategic Health Authorities (SHAs) finally got the power they had always craved, and Water Companies were, for the first time ever, required to comply with an order from a SHA to fluoridate their product.

Failure to recognise conflicting legislation

What Parliament failed to recognise in passing the Water Act 2003 was that existing English legislation on medicines and foods already

prohibited the implementation of fluoridation. Proponents repeatedly argue that fluoridated water is not a medicinal product but a food, and that fluoride is added to supplement the consumer's supposed deficiency in the non-nutrient, fluoride.

In support of this misrepresentation, the Regulator, the Medicines Control Agency (MCA - subsequently renamed the Medicines and Healthcare Products Regulatory Agency MHRA) refused to recognise the medicinal nature of the product, heedless of a number of clear definitions in English law, European Community Directives, and European Court of Justice (ECJ) rulings.

The result is that although it continues to be used for medicinal purposes, in English law fluoridated water has no medicinal marketing authorisation. Consequently, even describing it as having medicinal properties, for example when proponents of fluoridation describe it as being effective in preventing dental decay, is a criminal offence. But even if it is not classified as a medicine, but as a food additive, its use is still illegal. The fluoridation chemicals - fluorosilicates - are not authorised as permissible sources of the 'mineral' fluoride as an additive in any consumable food product.

So, fluoridation proponents (and even individual members of Parliament speaking outside the protection of the House) find themselves in a 'Catch 22' situation - whichever argument they use - medicine or food - they commit a serious offence for which they may be brough before a Court. If convicted, they could be fined, or even sent to prison.

The primacy of the European legislation

Whilst EC Directives and Regulations are not themselves enforceable as such in Member States, all dependent national legislation must comply in word and spirit with the relevant EC legislation. The definition of what constitutes a medicinal product has been repeatedly stated by the ECJ, and establishes abslutely that fluoridated water is medicinal by both action and intent, and cannot be marketed without valid authorisation.

So the British and Irish Government's refusal to recognise this mandatory limitation on the sale of fluoridated water to the public places them in a very vulnerable position. The enabling legislation in the Water Act 2003 will inevitably be declared incompatible with EC laws on medicines, foods, food supplements and additives. In this case, the indemnity offered to water companies against any claims against them would also be declared invalid. As one of our Advisers recently said, "There can be no indemnity for a criminal act!"

Analysis of the European legislation affecting water fluoridation.

In order to provide a clear legal review of the failure of the English legislation to comply with the over-riding framework of EC law, a detailed and fully referenced analysis is provided here on this site. Its implications are profound - the UK Parliamentary process is exposed as deeply flawed and in urgent need of revision. It will only be a matter of time before we discover whether this revision will be done through a domestic Judicial Review, or through an order from the ECJ. In either case, the demise of fluoridation in the UK and in Ireland is imminent.