Saturday, 3 July 2010

Join Your Freedom debate

Below is the contribution submitted by Doug Cross to the new 'Your freedom' consultation by the new coalition government on the removal of unwanted legislation. You can join the debate and add your comments.

The topic is 'Remove fluoride from the national water supply' -, and this comment is published at

Please go to this location and support the proposal - you will need to register (very simple) - once you have done so you can comment and vote for proposals. At the moment there are very few comments and votes against fluoridation, so we need as many votes as possible.

Doug's comment:

Repeal all legislation permitting or regulating water fluoridation

Water fluoridation is a medicinal intervention aimed at the prevention of dental caries. It therefore employs a medicinal product - fluoridated water - that is subject to regulation under the Medicines Act 1968 as amended. In fact the Regulator (MHRA) persistently and perversely refuses to comply with its statutory duty to subject fluoridated water to the mandatorystrict regulation applied to all other pharmacological products, despite the clear decision of Lord Jauncey in 1983 that it is subject to s130 of the Medicines Act.

Scale of the defective legislation on fluoridation.

The Water Fluoridation Act 1985 was reinforced by the fluoridation provisions of Chapter IV of the Water Act 1991. Subsequently this was again strengthened by Section 58 of the Water Act 2003, which for the first time gave Strategic Health Authorities the power to order water undertakers to fluoridate their product. There have been numerous additional Statutory Instruments dealing with aspects of fluoridation since then, covering the prospective future imposition of fluoridation in Wales, Scotland and Northern Ireland. Particularly controversially, shemes that were in operation before 1985 have been given retrospective protection against legal challenges and are regulated identically to new projects.

Supremacy of medicinal law.

As a medicinal intervention, fluoridation must be regulated solely under medicinal legislation. Since this pre-dates the fluoridation legislation, the latter is in breach of pre-existing and superior legislation. In addition, medicinal law takes precedence over food law . The 2005 ruling of the European Court of Justice re Warenvertriebs and Orthica dealt with the regulation of the class of products that include ‘near-water drinks with added minerals’. The Court stated that all such products must be regulated solely under medicinal legislation, and the rulings of the Court must be implemented in English law.

As a ‘medicinal water’ therefore, the provisions of the Water Supply (Water Quality) Regulations 2000 do not apply to fluoridated water. In addition, the use of medicinal waters in the processing of foods is prohibited under the Food Safety (General Food Hygiene) Regulations 1995, reinforced by the ECJ ruling on functional drinks.

The supply of fluoridated water to the public, except in bottled form and with a relevant medicinal product licence, and its use in any commercial production of processed foods, is therefore unlawful. All existing fluoridation legislation must be declared incompatible with both European and English law regarding medicinal interventions and medicinal products, and with food safety legislation, and repealed as quickly as possible.

Liability of suppliers of fluoridated water.

The indemnity offered by the government to water undertakers against liability for civil claims applies both to new and pre-existing schemes. In the case of the latter, water undertakers have been aware for years that the fluoridation legislation under which they continue to operate is in violation of medicinal legislation, since I released and distributed my analysis of the relevant legislation in 2000. They should have instructed their legal advisers to challenge the government’s fluoridation legislation, with the objective of reducing their liability for the medical damage caused to the public by their product. Since they did not do so, their legal position must be subject to scrutiny, and the government’s improper offer of indemnity abolished.

Fortunately, public opposition to fluoridation has prevented any new schemes from being implemented since the 2003 Act was passed, so water undertakers who have not yet complied with orders to fluoridate their product are not yet liable for any consequential damages that would have occured should thay have done so. However, water undertakers operating existing schemes may supply fluoridated water to presently unfluoridated areas in the event of an emergency (such as the current drought in Cumbria), and may do so without public consultation or consent. This facility must be abolished immediately - if such emergencies occur, water undertakers must be ordered to stop fluoridating their product for the duration, pending repeal of the existing fluoridation legislation under which they currently operate.

For a full explanation of the issues involved, see

A review of the status of water fluoridation within the European Community.

The implications of the European Court of Justice decision on the regulation of 'functional drinks' with regard to the practice of water fluoridation.

The application of human rights legislation to the practice of water fluoridation.