Documents > Law
A conflict between hope and reality -
Israeli Supreme Court did NOT ban fluoridation.
Doug Cross CSci, CBiol, FSB
11th August 2013
The media and the Internet are throbbing with excitement. “The Israeli Supreme Court has banned fluoridation” scream the headlines. Content-starved webmasters gratefully grab the latest Red Hot News and stuff it onto their front pages, hoping to attract their punters and encourage their advertisers. “Fluoridation will now be forced to end everywhere!”, shriek the frantic spamming emails that circulate the globe. It’s all so very exciting!
And its all so very wrong - if only it really were true! Once again, opponents of this despised practice of contaminating perfectly wholesome drinking water with a cumulative toxin have gone off half-cocked, relying on ill-advised media reports that have failed to research their latest sensational story adequately. The result is that a new urban myth is in the fascinating process of birth and hyper-inflation.
What Yaacob Gurman’s Petition before the Court sought to achieve
In Israel, the control of drinking water quality is regulated under the legal framework of health and sanitary legislation, and not water and food law as in most Western nations. When Yaacob Gurman began this action, in November 2012, the existing Sanitary Health Regulations 1974 contained a mandatory requirement for all water supplies for populations of over 5,000 to be fluoridated. Gurman sought to ask the Court to overturn this power of the State.
But in April this year, before Gurman’s Petition could be heard, Health Minister Yael German introduced the new Public Health Regulations (Sanitary Quality of Drinking Water and Drinking Water Facilities), 2013). These were approved by the Knesset and came into force in July.
The new Regulations specify that fluoride must be added in certain circumstances (section 20). But this is then modified by section 40, which states that Section 20 shall only remain in force for a period of one year. Thereafter the requirement for mandatory fluoridation will be abolished.
And last week the Court decided that this effectively dealt with the petitioner’s complaint, and terminated the hearing. So the sad news from Israel is that there was no Supreme Court ruling banning fluoridation. Indeed, the case in question was terminated prematurely, when it became evident that events had overtaken the petition and the case was ‘exhausted’.
The only ‘ruling’ was that the Respondents - the Health Minister and the State - should pick up the Applicant’s legal bill!
If you think that I’m wrong, the only commentator who is out of touch, then take a moment to read what my contacts in Israel have confirmed within the past two days. Mor Sagmon is a colleague of Yaacob Gurman, the leading Applicant in the Supreme Court action. When I asked them what the Court had said, this is what they confirmed:
Doug, Your understanding of the changes re. fluoridation laws in Israel are accurate. I can easily see how journalists will see what they want to see without the due-diligence required.
First and foremost, the Supreme Court did NOT ban fluoridation in Israel. As the petition process progressed, far from any apparent ruling, the new Minister of Health that took office 6 months ago made a quick move to change the Water Act and ‘remove the compulsory fluoridation statute’. (She petitioned herself some 10 years ago against this practice while serving as the Mayor of Herzlyia city). It basically ‘leaves the decision to each municipal entity’. If no obstacles run in the way, this updated act is expected to take power one year from now.
This changed the course of the legal rout and brought the case to a close for lack of relevance. In the final ruling the judges did write: "we took note of the fact that the State aims to bring Fluoridation to a halt in a year time...", however, as I said, it is more of a wishful thinking, or a hint, if you will, rather than a committing ruling.
(Personal communication from Mor Sagmon, 8th & 9th August 2013, confirmed by Yaacob Gurman, Principal Petitioner, 10th August 2013))
As my correspondents point out, the petition has been in progress for some time. It started before the new rules came into force, and experienced a number of delays before finally reaching the Court. But by that time the law had been changed and no further action was necessary.
So the Israeli Supreme Court has not banned fluoridation. Absurd claims appearing in at least one Irish media outlet that ‘an Irish scientist assisted the Court’ in its decision should be treated with an appropriate degree of entertainment. The hearing examined the petition before it purely as an issue in Israeli water law, and not with suggestions that fluoride might cause virtually every disease to which mankind is heir.
So what’s the position now?
The Court’s action does not require all fluoridation to cease within the next year. It merely recognises that fluoridation may be permitted to continue for another year, at the discretion of local authorities, and will then be subject to review by the Health Ministry. As a result, existing schemes are effectively operating under license until then.
If the Ministry decides to abolish fluoridation altogether, then the new Regulations allow it obtain an Order to terminate all existing schemes. But as my correspondents confirm, that is by no means guaranteed to happen, at least in the immediate future.
At present there is no indication as to whether or not the Ministry will decide to make this final move to outlaw the practice to which it has for so long been addicted. If it fails to do so, then local municipalities will probably be allowed to decide for themselves whether to continue existing schemes, or to fluoridate new ones. They will not be forced to do so as a matter of State policy.
So perhaps the comments that follow may persuade Israeli industry to put more pressure on the government to put an end to this damaging practice once and for all - after all, it's in the country's best economic interests to do so!
So is this the end of the story?
At first sight you may think so. The media have indulged in a mindless feeding frenzy, a non-event, it’s just a manifestation of the silly Season in all its glorious absurdity. Time to pack up and go looking for the next sensational story!
But behind this expanding but eminently deflatable story is a far more interesting one. Yes, the health issues raised by this bizarre form of State-mandated compulsory medication are increasingly causing dismay and concern to the general public. But hard-nosed commercial interests have entirely different concerns over the financial implications of permitting this disreputable practice to continue.
Only this time it’s not Big Bad Pharma that’s becoming involved. The emerging issues concern altogether different Stakeholder The ’New Kids on the Block’ are crucial international players in the maintenance of the Israeli economy. They have very strong interests in ensuring that the quality of the most essential food product in their country, drinking water, is maintained to the highest standards that are possible.
When you begin to appreciate the complex issues that are involved here, you may begin to understand just how important are those other hidden but entirely real threats to the Israeli economy of the obsession of the dental profession with contamination of the purest public water supplies in the world.
A different approach to water quality control
The key to understanding why fluoridation is of concern to major commercial industries across the entire country is the fact that Israeli law on drinking water differs from Western and many other legal codes in a crucial respect - water quality falls under State health and sanitary legislation, and not under food law.
Concerns over the medical safety of fluoridated water must therefore be far more robustly scrutinised in Israel than is the case in the West, where deliberate inconsistent legislation has led to it being diverted away from relatively stringent medicinal legislation into the convoluted and contradictory field of food law..
Health Minister German’s recent revisions of the original 1974 water quality legislation, that played a critical role in the Supreme Court hearing last week, are specifically aimed at bringing Israeli quality standards up to the stringent level demanded by international regulators. This has the effect of protecting two high-value commercial sectors of the Israel economy. The first is Israel’s internationally recognised leadership in advanced water treatment technology, whilst the second is its food export industry,
Exporting technical know-how.
The supply of an adequate and safe supply of drinking water to the expanding Israeli population has long been a major headache. The main freshwater supplies, from the Kinneret (Sea of Gallilee) and the coastal aquifer, are entirely inadequate for present day demands.
So the country has become heavily reliant on the desalination of sea water. Almost 75% of its domestic water is now obtained from coastal desalination plants, which produce extremely pure water using the process of reverse osmosis, which removes almost all dissolved solids from the water.
Israel is now even exporting drinking water to Jordan, obtained by processing brackish water from saline springs around Kinneret, and is the world leader in desalination technology. Its high-tech plants are now producing pure water at an unbeatable cost of around U$0.50 per cubic metre, and the State’s capacity to meet water demands through its desalination and recycling technology is a key factor in protecting its national security.
Israel currently recycles 75% if its water supply, and it is a leading expert in desert irrigation technology . Its impressive track record in water supply and management has resulted in very strong demand for Israeli expertise, and its consulting and construction companies have already set up hundreds of desalination plants throughout the world, including in Asia, Europe, South America and Africa.
So what Israel does to its water supply at home is of some concern to all of the potential customers for its water security technology abroad. Many countries have rejected fluoridation, and regard with some distaste the deliberate contamination of highly purified water with a controversial industrial waste product. It is not in the interests of Israel’s commercial water technology export sector appear to endorse this bizarre practice in its own home state.
Exporting food to the West.
The export of both fresh and processed food products is a major export sector in Israel, worth over US$1.1 Billion a year. Preparing food for export entails either washing it or incorporating water into the final product during processing. So ensuring that the quality of water used in food production and marketing complies with that demanded by its customer nations is crucial to protecting its ability to compete in the international markets.
In the European Union, all food products in which water is used, either to clean food or to prepare it (and its containers) for export to Member States, must be ‘water for human consumption’. But fluoridated water is not this product. Instead it is a ‘functional drink’ - that is, one for which a medicinal claim is made.
A landmark ruling by the European Court of Justice in 2005 (Warenvertriebs and Orthica, and Others) ruled that functional drinks cannot be marketed as foods, but must be regulated and licensed as medicinal products. And it also ruled that any food prepared with them may not be exported to other Member States of the EU unless it has been awarded a relevant medicinal product license.
The Israeli Supreme Court’s statement last week included the apparently overlooked comment that
Fluorination, as aforesaid, has been performed according to the concept supporting it as an act of preventative medicine for protecting the population’s dental health (my emphasis added)
This apparently innocuous comment holds the key to a very serious obstacle to the future acceptability of Israeli foods in the international marketplace. Because under Israeli public health law, the act of fluoridation is unquestionably accepted as a medicinal intervention, and the product is therefore a medicine.
So the European Court prohibition on the import of foods manufactured using applies to all Israeli foods prepared with fluoridated water, and requiring them to be sold only with appropriate medical instructions displayed on their container or wrapping. And that would inevitably be disastrous for sales - customers will not buy medical foods as substitutes for their normal groceries!
That the British and Irish governments (and even the European Commission) refuse to comply with this European Court’s 2005 ruling is irrelevant. But fluoridation is widely regarded as an unacceptable intervention in most Member States of the EU, and opposition is hardening as public awareness of the confrontation over its continuation in the UK and Ireland spreads through the media and Internet Member States could, at any moment, decide to recognise and enforce the European Court's ruling on functional drinks, leading to a devastating ban on the import of Israeli food products (as well as those from Britain and Ireland!)
What now for Israel’s domestic water supplies - fluoridation or not?
The Israeli expert committee set up to decide on the future of fluoridation must now decide whether to advise the government to eliminate fluoridation from the country's public water supply, or to allow the decision to be made by individual communities, as the British government seems to be attempting to do.
Any communities that do retain the practice will automatically risk severe market disadvantage, or even exclusion, if they rely on the use of municipal water for the production of export-grade food products to nations that reject fluoridation.
Until the final decision on fluoridation in Israel is made and enforced - which, as my correspondents say, is by no means certain - the future of fluoridation in that State remains in limbo. But what is quite clear is that there are very sound commercial reasons for abolishing this practice, quite apart from the fundamental issue of the permissibility of retaining a medical practice for which there are overwhelming contrary issues of both health and safety and of ethics and human rights.
Fluoridation in Israel may be down on its knees, but it’s by no means out of the running entirely. It is foolish and misleading to suggest that this latest abortive confrontation in the Supreme Court in Jerusalem at last marks the end of the battle.