UKCAF website

Criminalising the water sector.

Why the English fluoridation legislation
must be repealed

Doug Cross 9th July 2010

The UK's new government’s invitation to the public to nominate unnecessary or oppressive laws that should be repealed has generated an immediate and substantial response - ‘Repeal fluoridation laws, now!’ Until this anomaly is removed, water companies are, in effect, being criminalised in a ‘Catch 22’ situation whereby they may be liable to prosecution if they refuse to obey an order to fluoridate their water, but are in violation of other legislation if they do comply

The legislation that permits fluoridation is incompatible with preexisting medicinal legislation. As fluoridated water is not ‘water for human consumption’, but a medicinal water, it is excluded from regulation under the Drinking Water Directive. Medicinal waters must be exclusively controlled as medicines, an interpretation emphasised by the decision of Lord Jauncy in 1983 that ‘fluoride, in whatever form it is purchased by the respondent’ is a medicine.

In a more recent ruling on ‘functional drinks by the European Court of Justice (ECJ) in 2005 the Court specifically stated that the requirement to regulate such products as medicines applied to ‘near-water drinks with added minerals.' This is a precise description of fluoridated water; it is promoted as having medicinal properties, and in food law fluoride is classed as a ‘mineral’. The opinion incessantly repeated by the regulator of medicines, the MHRA, that the ECJ ruling does not apply to this product suggests a level of deliberate perversity that is entirely unacceptable in public office.

What the MHRA fails to disclose is that the ECJ emphasised that national regulators in Member States have no authority to exercise their discretion in classifying such functional drinks as medicines. The rulings of the Court must be implemented into national legislation. The MHRA’s opinion has no legal standing, and it has no option - it must regulate fluoridated water as a medicine.

Damned if they do fluoridate, damned if they don’t.

So where does this leave the water companies? Well, their position is decidedly precarious because, through the incompetence of Parliament, water companies now face prosecution regardless of whether or not they comply with an order to fluoridate. The industry cannot continue to sit on the fence pretending that the legal dispute over the legitimacy of the practice is not an issue for them or their shareholders. So I will first examine the position of a water company that does not currently supply fluoridated water, but that might be about to be ordered to do so.

The Water Act of 2003 gave Health Authorities the power to order companies to fluoridate their product; if they refuse then they are liable to criminal proceedings. So far that seems perfectly clear and simple. But if they do obey such an order, they then could still be accused of committing a criminal offence, but this time under the English food or medicinal legislation.

Food or medicine?

The fundamental question that water companies need to resolve is this - what is the legal status of the ‘fluoride’ that they may be ordered to add to their product? If, as the MHRA claims, fluoridated water is a food and not a medicine, then the product must comply with the legislation governing foodstuffs, since drinking water is regarded as a food once it emerges from the consumers’ taps.

Any fluoride that is not marketed in dose form as a food supplement, but is deliberately added to a food, can only be classified as a food additive. The source materials for all food additives are precisely defined and strictly regulated - the only permissible sources of fluoride deliberately added to foods are sodium and potassium fluoride.

Irrespective of the English legislation nominating fluorosilicates for fluoridating water, they are not authorised sources of fluoride as a food additive. If fluoridated water is indeed a food, as the MHRA claims, then their use for this purpose in drinking water violates the food legislation, and companies could be charged with manufacturing a product using an unauthorised chemical as the source for a food additive.

Could water companies avoid potential prosecution under food law? Yes - but again there’s a catch. Any ingestible product is either a food or a medicine (all other substances, such as illegal drugs, poisons and similar substances, are classed as non-ingestible). So the threat of prosecution under the food laws could be avoided by accepting that this product is in fact medicinal

But if this is so, then the refusal of the MHRA to issue the mandatory medicinal licence means that water companies could then be charged with placing on the market a medicinal product for which no licence has been issued, itself a serious criminal offence.

The MHRA - acting as judge and jury.

The reason that this flagrant disregard of medicinal law by the regulator has not yet been challenged in the Courts is, of course, that the MHRA is itself the enforcer of medicinal law.

Its refusal to take appropriate action reveals its own complicity with the Department of Health in promoting the use of an unlicensed medicinal product that is in fact so unreliable and ineffective that no such license could ever properly be issued.

In failing to take appropriate action the MHRA is now defying both English and European law. It acts as judge and jury in its own court, despite the fact that, as the ECJ ruled, it actually has no authority to exercise any discretion in the matter.

Knock-on effects - contaminating export products.

But this is not the limit of the legal quagmire into which the MHRA has descended, and into which it would inevitably drag water companies if they were to comply with an order to fluoridate their product. Under the food safety and hygiene legislation, water used in the preparation or manufacture of foodstuffs must be the form of water that is regulated under the drinking water regulations.

But the wording of the drinking water regulations leads to the inevitable conclusion that, as a medicinal product, fluoridated water is not ‘potable water’ or ‘water for human consumption’. Its use in preparing foods is therefore prohibited.

And if, despite this, fluoridated water is used for this purpose, then the ECJ ruling also states that food products made with a medicinal water (a ‘functional drink’) may only be exported to other Member States of the EU if they are accompanied by a relevant medicinal licence.

Violating the food product labelling requirements.

All manufactured foods must provide a list of ingredients on their packaging. The drinking water regulations make it clear that the description ‘water’ refers only to ‘water for human consumption’. So if the label of a food manufactured in a fluoridated area of England and using the municipal water supply states in its list of ingredients that it includes ‘water’, then the manufacturer could be charged with violating the food law by making a false declaration of its contents.

So food processors and manufacturers could, in theory at least, bring actions against a water company that decides to fluoridates its product on the order of a Health Authority, arguing that the company had supplied a product that, like the MHRA and the spurious laws that condone the practice of water fluoridation, is not fit for purpose.

If market outlets in the EU decide to place an embargo on imported foods prepared in the UK, on the grounds that they could have been manufactured using a medicinal water, the potential commercial implications for the exporters could be very severe. In heavily fluoridated Australia the prospect of a potential trade embargo on processed food exports to the EU for this reason is already causing consternation, as the full implications of this EC ruling on its export sector sink in.

The Government’s offer of indemnity - not worth the paper it’s written on.

In the Water Industry Act of 1991 the government agree to provide indemnity to water companies against third party claims that might arise from fluoridation, primarily because of the concern that claims might be initiated by the public for medical damages. But this indemnity is by no means guaranteed, and is entirely at the discretion of the Secretary of State.

Indemnity would not prevent the prosecution or even the conviction of a water company in such cases, but the government - or rather, the taxpayer - would reimburse the company for any financial penalties that might be imposed by a Court. The question then becomes, should taxpayers be liable for penalties imposed on water companies for any unlawful activities that they might be forced to engage in under this gimcrack and irrational legislation?

But this indemnity is not available for the potential violations of food and medicinal law that I have outlined above - there can be no indemnity for a criminal act. So companies that have already been fluoridating their product voluntarily may need to reappraise their position; they were not forced to do so by a Health Authority, so a defence of involuntary criminalisation by the State would not appear to be available.

Were the MHRA forced to recognise that fluoridated water is a medicinal product, companies would immediately have to stop supplying it to the public, not only because it has no marketing authorization but also for the apparently prosaic reason that a medicine may only be supplied if it is in a container!

The incompatibility of the fluoridation legislation with both food and medicinal legislation results in the unavoidable criminalisation of the water industry. There is no scope for further evasion by the government - since medicinal law takes priority when it applies also to foods, all legislation that permits or regulates fluoridation must now be removed from the statute book, to allow the water sector to operate in an unambiguous and rational environment.