ActionPA.org

A Pennsylvania-based research, organizing, and networking center for the grassroots environmental justice movement.

Somerset, KY Fluoridation Fought

M. E. GRAYBEAL et al., Appellants, v. Christopher B. McNEVIN, Appellee

[NO NUMBER IN ORIGINAL]

Court of Appeals of Kentucky

439 S.W.2d 323;
1969 Ky. LEXIS 371

 

March 28, 1969

COUNSEL:

 [**1] 

Fritz Krueger, Somerset, Ben D. Smith, Somerset, for appellants.

M. D. Harris, Somerset, for appellee.

JUDGES: Edward P. Hill, Judge.

OPINIONBY: HILL

OPINION:

 [*324]  The judgment from which this appeal is prosecuted enjoins the fluoridation of
the water system in Somerset, Kentucky, and adjoining area. We reverse the
judgment. The questions herein presented have not heretofore been presented or
decided by this court, although fluoridation of public water supplies has been
in operation in Newburgh, New York, and Grand Rapids,
Michigan, since 1945. Maysville, Greensburg, and Louisville in 1951 were the
first Kentucky cities to fluoridize their water supplies.

This suit was filed by appellee, Christopher B. McNevin, a doctor of
chiropractic in Somerset, against M. G. Graybeal and Kentucky Water Service
Company. Later the
Kentucky State Board of Health was permitted to intervene.

In May 1966, the State Board of Health, acting pursuant to KRS 211.090(1) (d)
and 211.180, adopted an amendment to Regulation C-NEG-2, Fluoridation of Public
Water Supplies, by which cities of the first four classes are permitted to
“adjust deficient waters to an optimum
fluoride content for the protection
 [**2]  of the dental health of the people served by the supply.”

The regulation provided that approval by the Department of Health was made
contingent upon provision by the supplier of fluoridation insuring adequate
control and supervision and safe operation and maintenance. Requirements as to
equipment, facilities, and service were rigidly prescribed, covering reliable
feeding equipment

 [*325]  and the rate of feed, protection of operators, separate storage of the
fluoride chemical, laboratory facilities, testing and sampling and the submission of
samples to the department. Other safety provisions were embodied in the
regulation.

Memoranda were issued to mayors and water plant
superintendents, including those of Somerset, advising them that the water
systems of those cities in which fluoridation was not installed within six
months would be classified as
“provisional” in lieu of the
“approved” rating existing before the adoption of the regulation, which according to
appellee amounted to the approval of fluoridation and a downgrading of the
water system of those not complying with the
regulation.

The regulation fixed the
“optimum
fluoride content” of public water supplies to be achieved
 [**3]  by the regulation to be one-part
fluoride per one-million parts of water.

The Somerset water system, built in 1957, included a separate room and some
facilities for fluoridation in anticipation of
future use.

On January 23, 1967, the city council of Somerset adopted a resolution
requesting appellant Kentucky Water Service Company to
“install as soon as possible” the necessary equipment to introduce
fluoride into the city water system. This company has been the supplier of public
water in Somerset since 1957.

Appellee questions the validity of the regulation referred to above by charging
that the regulation (1) is in violation of KRS 315.020, regulating the
dispensing of drugs; (2) violates his
“right to freedom of religion”; (3) violates his rights under section one of the Fourteenth Amendment to the
Constitution of the United States; (4) is
“arbitrary and
in violation of section two of the Constitution of Kentucky.” He further asserts that he had no opportunity to be heard and was denied due
process; and that the proposed action by the city will do incalculable harm to
his health, to the health of his family, and to other consumers.

After a lengthy trial by the court without
 [**4]  a jury, the
trial court fully agreed with plaintiff and granted the permanent injunctive
relief sought. The State Board of Health and the Kentucky Water Service
(hereinafter Water Service) have appealed. Fluoridation had been commenced
February 10, 1967, but was discontinued by the injunction herein on April 7,
1967.

By Chapter 211 of
KRS the legislature has wisely recognized and declared that the public health
is an
“essential function” of the government of this Commonwealth. KRS 211.005.
“The relation of dental hygiene to the health of the body generally is now so
well recognized as to warrant judicial notice.” See
Dowell v. City of Tulsa, Okl., 273 P.2d 859, 43 A.L.R.2d 445 and KRS 211.180.

The State Board of Health is empowered to
“adopt rules and regulations.” KRS 211.090(1) (d).

Among the police powers of government, the power to promote and safeguard the
public health ranks at the top. If the right of an individual runs afoul of
the exercise of this power, the right of the
individual must yield.

The State Board of Health is composed of ten members, including the
Commissioner of Health. One member must be a registered pharmacist, one a
licensed dentist, one a licensed
 [**5]  osteopath, and the remaining six members shall be
“licensed medical physicians.” It is a regulation of this
board in the field of fluoridation, a medical-scientific field, that appellee
McNevin petitions the court, composed of men of law, not medicine or science,
to set aside and hold for naught.

The general rule in regard to judicial review of rules and regulations of
administrative

 [*326]  agencies is thus stated in
42 Am.Jur., Public Administrative Law,
§ 209:

“In general, in the absence of valid statutory provisions or other factors
affecting the scope and extent of judicial review, administrative
determinations will not be interfered with by the courts unless, but will be
interfered with where, the determination is beyond the power which could
constitutionally be vested in or exercised by an administrative authority; the
determination is without or in excess of the statutory powers and jurisdiction
of the administrative authority, the determination is an exercise of power so
arbitrary or unreasonable as virtually to transcend the authority conferred, or
is otherwise an abuse of discretion, or is in disregard of the fundamental
rules of due process of law, as
required
 [**6]  by constitutional or statutory directions * * * made * * *.”

This general rule of judicial review may not apply with equal force to a
regulation by an agency composed of specialists in an area in which the courts
must acknowledge a limited understanding. Speaking in this vein, it was
written in
Hutchinson v. City of Valdosta, 227 U.S. 303, at page 307, 33 S. Ct. 290, at page 292, 57 L. Ed. 520 that:

 

“It may be that an arbitrary exercise of the power could be restrained,
but it would have to be palpably so to justify a court in interfering with so salutary a power and one so
necessary to the public health [sewer control].”

See also 2 Am.Jur.2d, Administrative Law,
§ 633, from which we quote the following:

“Perhaps the most significant factor limiting review by the courts of action of
administrative agencies generally, although undoubtedly variable in degrees
appropriate to particular agencies, is the
scope of the power which has been reposed in the administrative agency by
statute and the informed and expert judgment of the agency based upon its
accumulated experience in the matters with which the statute is concerned.
Courts often advert to the expertness,

 [**7]  special competence, specialized knowledge, or experience of the administrative
agency which fortifies the judgment of the agency * * *.”

As the issues were
presented in the trial court, the power of that court was limited to a
determination of whether the regulation in question was arbitrary or in
violation of appellee’s constitutional rights in the particular respects
pointed out by appellee. On the issue of arbitrariness, the burden was on the
plaintiff to show that the regulation had no reasonable basis in
fact or had no reasonable relation to the protection of the public health. The
constitutional question was one of law. Probably the true test of
arbitrariness would depend on the evidence the board had before it when it
adopted the resolution. But the parties went beyond this test and proceeded to
offer evidence in circuit court, so we consider the case as practiced.

We
must look to the facts in this record and the facts before the board when it
adopted the regulation to determine whether the finding of the trial court of
arbitrariness is
“clearly erroneous.” CR 52.01. Necessarily this will be a lengthy process due to the importance we
attach to the qualification of
 [**8]  the witnesses.

We first discuss appellants’ witnesses and their evidence.

Dr.
Russell E. Teague has been Commissioner of Health in Kentucky since 1956, and
is a member of the State Board of Health. He has been with the State
Department of Health since 1930 except for a one-year leave to earn a master’s
degree in public health and epidemiology at Johns Hopkins. He was
president of the American Association of State and Territorial Health
Commissioners in 1967.

 [*327]  Dr. Teague testified that of Kentucky’s 3,000,000 population the number served
by public water supplies is 1,800,000, and out of this number some 1,200,000,
or 64 percent, drink water containing
fluoride; that extensive studies and tests were made
preceding the use of fluoridation in this state. The first test showed dental
defects in 90 percent of the school children. After 10 years’ use of
fluoride, these tests showed a 90-percent reduction in dental defects in school
children; that recent tests in
Louisville, Maysville, and Ashland showed similar results; that significant
benefits also accrue even where availability of
fluoride is deferred to later years, and these benefits continue into and through old
age;

 [**9]  that there is substantial evidence that controlled fluoridation produces
stronger bone structure, beneficial to older people. Dr. Teague testified that
modern
fluoride equipment is safe and presents no health problem and that proper fluoridation
“does not in any sense produce harm to the health of the people.”

Nick G. Johnson, Director, Sanitary Engineering Program, Division of
Environmental Health, State Department of Health, is responsible for
enforcement of public water supply
regulatory measures. He has a bachelor’s degree in civil engineering from the
University of Louisville, and a master’s degree in sanitary engineering from
the University of Michigan. He has been with the Department of Health for 20
years. He testified that all requirements and specifications of the regulation
were fully met, both as to equipment and management personnel.

Dr. M.
A. Shepherd is the Regional Medical Director, Central Region (embracing 20
counties), State Department of Health. He is a physician with 12 years’
experience in this work with headquarters in Somerset. He practiced medicine
there before his association with the Department of Health. He stated that
there was a great demand by
 [**10]  the citizens of
Somerset for fluoridation. He said:

 

“As a public health physician certainly it has been my duty to research the
literature in the field of public health and I have read extensively in the
literature etc., there has been no documented evidence of any danger or any
damage done from using fluorided public water. * * * Every national health
organization in the United States that speaks with authority on the benefits
and safety of fluoridation has adopted policies favorable to the measure. * *
* They * * * [include] the American Dental Association, American Medical
Association, American Association of Public Health Dentists, Association of
State and Territorial Dental Directors, Association of State and Territorial
Health Officers,
National Research Council, U.S. Public Health Service, American Association for
the Advancement of Science, American Academy of Pediatrics, Commission on
Chronic Illness, Inter-Association Committee on Health, American Society of
Dentistry for Children, American Public Health Association, American Academy of
Dental Medicine,
Canadian Dental Association, Canadian Medical Association, Canadian Public
Health Association, International
 [**11]  Dental Federation, American Pharmaceutical Association, National Congress of
Parents and Teachers, American Federation of Labor and Congress of Industrial
Organizations, American Legion, U.S. Junior Chamber of Commerce.”

Dr. E. D.
Gernert has the D.M.D. and M.P.H. degrees. He is professor of community
dentistry, University of Louisville, and was Director of Dental Health, State
Department of Health, until 1967.

Dr. Gernert testified he has closely followed the development of fluoridation
since 1945 and studied the various tests and research on the subject; that he
participated in various studies
himself; that he and his associates
“accumulated base line statistics on the condition of children’s

 [*328]  mouths and * * * took a mortality and morbidity rating on these communities” [Maysville, Greensburg, and Louisville] and that they followed these studies
periodically; that they
“found that when the children had full benefits of fluoridation from birth on
there was a 60% reduction in tooth decay.” That there was
“no evidence of any
impairment to health in these children from the study of the morbidity and
mortality rates.”

Dr. Gernert further stated:

 

“Long before
 [**12]  1945 when Newburgh, New York, was fluoridated, we were certain there was no
detriment to health from
fluoride in the diet or water, and the question at that time was whether we could
actually put the
fluoride in and control it without too
much expense and too much difficulty. Of course, the Newburgh studies and the
Grand Rapids studies, and others assured us that this could be done. Extensive
studies in Newburgh, New York, health study of the general health of the
patient, blood studies, bone studies, X-ray studies and everything else were
conducted during this
procedure or method of fluoridation, so that long before 1951 when we advocated
fluoridation for communities in Kentucky, in my opinion there was no question
as to the safety of the procedure, and this has been borne out by sixteen years
of experience in fluoridation in community water supplies in this state.”

He also stated that fluoridation
process does not constitute the dispensing of drugs or medicine; that
fluoridation is not a medication, it is a
“nutrient which produces stronger teeth and bones”; that fluoridation is
“one of the great discoveries of our time”; and that it
“is safe.”

A. B. Coxwell, D.M.D., is executive
 [**13]  secretary of the Kentucky Dental Association and has practiced dentistry for
20
years. He testified that the House of Delegates of the Kentucky Dental
Association passed a resolution
“demanding that the State Board of Health take action to see that the water
system of the State of Kentucky be adequately fluoridated”; that
“every known accredited organization in the world has approved the fluoridation
of water supplies for the prevention of
dental caries”; that he had never seen
“any evidence of any harm done to any one” due to fluoridation.

Dr. Pat H. Lyddan, a pedodontist, with a D.D.S. degree, has served as president
of the Kentucky Dental Association, and as an instructor in children’s
dentistry at the University of Louisville for 22 years. Dr. Lyddan
gave this answer to a question as to his experience:

 

“After the water was fluoridated in Louisville, within two or three years after
the water was fluoridated, we began to see in our practice and this was not
only true in my practice but in the practice of well, I will get to that in
a moment, the nature of my practice changed remarkably. Up until that time we
were fighting a losing battle just to be able to restore all
 [**14]  the decaying teeth, and in a period of about three years our practice changed
to one where we were able to do more preventive dentistry, or what we call
interceptive dentistry or
preventive dentistry and to educate the parents, and also the patients to try
to prevent tooth decay, due to the fact that we had this 60% reduction in
decay, because of fluoridation of our local water supply. Also in addition the
American Society of Dentistry for Children made a study of pedodontics all over
the country, and in areas where the water was
fluoridated, the result bore out the statement that I made, that all of us who
practice in fluoridated areas, that our practice changed from 80 or 90 percent
restorative dentistry, or trying to restore and fill the decayed teeth, to
something like 60% of our practice became more or less a maintenance and
preventive type of practice.”

 

 [*329]  When
asked as to whether he knew of any harm due to fluoridation, he said:

 

“No, I have not. In addition during the war I lived in a community in Texas
where the water contained from 2 1/2 to 3 1/3 parts
fluoride, naturally, and in addition to not having very much cavities, the
general health of all
 [**15]  the people in this community was excellent.”

Dr. Alvin L. Morris has the D.D.S. and Ph.D. degrees and has been Dean of the
University of Kentucky College of Dentistry since 1961. He gave this answer as
to the effect of fluoridation:

 

“It is the responsibility of the Dean to serve as the major administrative
officer of the academic institution, also to engage in
instruction and some research. * * * The evidence is overwhelming that water
containing one part per million of
fluoride will result in the reduction of new cavities developing in children to the
extent of approximately 60 per cent. During my past experience in academic
life I have had the privilege of serving as
a colleague for three years with Dr. Harold Hodge, and Dr. Frank Smith, of the
University of Rochester. These gentlemen have been responsible for doing the
major research relative to the benefits of
fluoride on biologic tissues. Their research, which was taking place during the time I
was working with them revealed unequivocally that there would be no detrimental
or
harmful effects to the health of anyone consuming a water supply containing one
part per million. Their research has been regarded as the
 [**16]  key work, and the earliest work for establishing this fact on an experimental
basis. Since that time, the experience with some 63 million Americans who have
been and are drinking public water supplies with
fluoride
added to these amounts has completely substantiated their research.”

Dr. D. L. Gambrall, D.M.D., M.P.H., is Acting Director, Dental Health Program
of the State Department of Health. His M.P.H. degree is from the University of
Michigan. He stated:

 

“During my first year with the State Health Department I was in the clinical
program.
In this program we provided care to children throughout the state, indigent
children, mostly. In many areas I worked on children who did not have the
benefit of fluoridated water. The prevalence of caries was immense. In other
areas we did get to work on children who had had fluoridated water, and had
received
fluoride for their entire
lives, and there was, you would note immediately a tremendous reduction in
dental decay in the range of 60 per cent or better.”

W. L. Williams had been with the Louisville Water Company for 20 years. He was
superintendent of the purification plant and has a bachelor’s degree in
chemistry and
 [**17]  a master’s degree
in bacteriology. He had been an instructor on these subjects in high schools
and at the University of Louisville Medical College for 19 years. When asked
about the corrosive effects of
fluoride on water pipes, Mr. Williams replied:
“It is generally known that
fluoride causes no corrosion at all.” He stated that over one-half million
people are served by the Louisville Water System, and in all the thousands of
complaints by water consumers
“none of them had anything to do with
fluoride.”

F. J. Maier is a consulting engineer for Pan-American Health Organization, with
33 years’ experience in sanitary engineering, n1 part of which period he was
in charge of a laboratory in Bethesda, Maryland, relative to the problems
associated with
fluoride in water. He was asked this question and gave the following answer:

 

“Q.5 Mr. Maier, during the time you headed up the fluoridation program

 [*330]  of the United States Public Health Service, did you learn of any ill
effects on any person throughout the United States from having consumed
fluoridated water that was properly administered, that is, proper amounts?

 

“A. We have no single instance in the United States,

 [**18]  or anywhere in the world where fluoridation is practiced that this has
occurred.”

 

 

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –

n1 This experience was with the U.S. Public Health Service.

 

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –

He also stated he
never in all his years of experience had heard of
fluoride causing corrosion in water pipes. He gave testimony that the equipment
proposed at Somerset was standard, safe equipment.

There was other testimony by other disinterested, qualified witnesses for
appellants, and we have given only the high points in the testimony of the
witnesses to whom we have
just referred.

We turn now to the evidence offered by appellee in opposition to fluoridation.

Appellee, Dr. McNevin, a local chiropractor, testified that sodium
fluoride is a virulent poison, a fact which is admitted by the appellants; that when
fluoridation was commenced he became alarmed for the safety of himself and his
family; and that the consumption of fluoridated water would be injurious to
them.

Dr. Ray McPike, a Louisville chiropractor, testified that
fluoride does not treat water,

 [**19]  but instead treats people and introduced a number of exhibits, over the
appellants’ objection, indicating the continued consumption of
fluoride would be harmful to children.

George Whatley
Massey, a graduate of Ohio State University, a student at Georgia Institute of
Technology, and an instrumentation engineer of Knoxville, Tennessee, testified
that ingestion of anything over 1.25 PPM is likely to be toxic and that this is
the
“safe” amount claimed by the U.S. Public Health Service; that
fluoride is corrosive in pipes as
shown by experience in the cities of Pittsburgh, Miami, Concord, New Hampshire,
and Andover, Massachusetts; that in Pittsburgh it was necessary to add 3 PPM at
the water plant to get the recommended 1 PPM at the tap; that the surplus
fluoride concentrated and remained in water pipes up to 8,000 PPM
in Concord and that 400 PPM is a lethal dose; that evidence from the Grand
Rapids, Philadelphia, and Evanston, Illinois, experience indicated that
children drinking fluoridated water do not get fewer cavities but only an
approximate three-year delay; that the safety factor of the ingestion of
fluoride is 0; that fluoride concentrates of
6,000 PPM were found in 16-inch water
 [**20]  mains, and of 2,500 PPM in a 3/4-inch house water line in fluoridated San
Francisco, and that in Concord, New Hampshire, where no
fluoride had been added to the water supply for two weeks it was found the
water still had a concentration of 2.8 PPM.

Cecil Petard, M.D., of Knoxville, Tennessee, a practicing physician for 16
years, a member of the American Medical Association and of the Association of
American Physicians and Surgeons, testified that the American Medical
Association is not prepared to state that
“no harm
will be done to any person by water fluoridation” and has not carried out any research, either long-term or short-term,
regarding the possibility of any side effects; that the AMA does not guarantee
the safety of fluoridated water; that a 1963 article published in the American
Journal of Diseases of Children stated it is
unnecessary and unwise to add
fluoride to drinking water for the reasons, among others, that the dosage is highly
variable and inaccurate and that older children and adults need not and should
not be dosed with the drug; that he has two patients who have been harmed and
suffered illness from drinking fluoridated water from a public water supply;
that
 [**21]  the Association of
American Physicians and Surgeons, Inc. in San Francisco on April 12, 1958,
adopted a resolution condemning the addition of

 [*331]  any substance to public water supplies for the purpose of affecting the bodies
or mental functions of consumers; that there is evidence to indicate that
fluoridation increased the death rate in Grand Rapids
over the area outside the city, and unfluoridated Knoxville, Tennessee, has a
death rate lower than the state average; that fluoridation increases the
incident of mongoloid births to an alarming degree.

Dr. Petard further testified there is considerable disagreement among the
doctors of Knoxville over the desirability of fluoridation as a health measure,
and that he as
a physician was not in favor of adding
fluoride to public drinking water because he would rather wait until better evidence is
in, an opinion in which he is apparently joined by the United States Veterans
Administration and opposed by the United States Public Health Service. Dr.
Petard also testified that very
few dentists in Knoxville prescribed
fluoride for the teeth of patients.

Mr. J. V. Adams of New Albany, Indiana, with a bachelor’s degree in chemistry,

 [**22]  a master’s degree in public health from the University of Michigan, a
director’s degree in health and safety from
Indiana University, and who is now working on a doctorate degree, testified
that sodium
fluoride is a poison, originally used as a rat and roach killer, and that continued
ingestion of
fluoride over a period of time would accumulate in the human body; that his experiments
indicated that certain foods contain high
concentration of
fluoride and that it is the highest and strongest chemical; that it concentrates and
accumulates in water pipes and in the body; that people ingest it in varying
quantities by eating, breathing, and drinking water, and that it is the highest
form of poison, is not a nutrient and has no food value; that the United States
Public Health
Service recommended the addition of iodine to the public water supplies several
years ago, then changed their position when they discovered it was producing
certain systematic disorders — especially goiter; that
fluoride cannot be controlled and that it affects the blood cells and nuclear cells in
the human body.

It is apparent that appellee’s witnesses had had no applicable
experience with fluoridation. They testified,

 [**23]  for the most part, from information in newspapers and pamphlets, one of which
was published by the Pure Water Association of Fresno, California. A large
part of appellee’s evidence is based on hearsay. See
Kentucky Public Service Co. v. Topmiller, 204 Ky. 196, 263 S.W. 706 (1924); and 32 C.J.S. Evidence
§ 717.

After considering the experience and qualification of appellants’ witnesses and
the lack of experience and qualification of appellee’s witnesses, and the
studies, tests, experiences, and recommendations of practically all the people
and organizations into whose care the health of this nation has been entrusted,
we conclude plaintiff failed in his
burden to prove the resolution was arbitrary and that the finding of the trial
court is clearly erroneous.
Nourse v. City of Russellville, 257 Ky. 525, 78 S.W.2d 761 (1935); and
City of Louisville v. Thompson, Ky., 339 S.W.2d 869 (1960).

In
Jacobson v. Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643 (1905), the Supreme Court said writing on a kindred question of appellate review:

 

“If there is any such power in judiciary to review legislative action in respect
of a matter affecting the general welfare, it can only
 [**24]  be when * * *
a statute purporting to have been enacted to protect the public health, the
public morals, or the public safety has no real or substantial relation to
those objects or is,
beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”


Although this court has not had occasion to determine the legality of
fluoridation, at least
fourteen states have done so. See

In
De Aryan, Dowell, Chapman and
Kraus, supra, the Supreme Court either denied certiorari or dismissed the appeal.

We find no merit in appellee’s contention that fluoridation of public water
supplies violates his rights under the first section of the Fourteenth
Amendment to the Constitution of the United States or section two of the
Constitution of
Kentucky or KRS 315.020. See
Dowell v. City of Tulsa, supra.

During a period of over 20 years fluoridation has come through the experimental
stage with flying colors. True, there have been critics of the system, and it
has borne the
 [**26]  blame for many defective water systems, many of which resulted from other
causes. Any endeavor of such magnitude as fluoridation may encounter some
imperfections due to human or mechanical error, but the benefits so far
outweighed the disadvantages the endeavor is justified.

Nearly every great medical and scientific discovery has fought the battle of
“trial and error” and has been opposed by the skeptics and the incredulous. But progress
demands that
research persist unhampered by the courts.

The judgment is reversed with directions to dissolve the injunction and dismiss
the complaint.

All concur.

Return to Fluoride-Related Court Cases
Return to Fluoridation page
Return to ACTION Center Homepage


http://actionpa.org/fluoride/lawsandcourts/ky-somerset.html