According to a report from Australian food law specialists FoodLegal, Australian beverage and food companies will need to watch closely what emerges from a recent American lawsuit.

Foodlegal has reported that parents of a 13-year-old girl from Maryland, USA, have filed a lawsuit against Nestle USA, manufacturer of ‘Deer Park’ and ‘Poland Spring’ bottled waters with added fluoride, and also against Gerber Products Company, which manufactures baby food and infant formula products containing fluoride.

The parents have claimed that fluoride contained in these products is to blame for their daughter suffering from ‘dental fluorosis’, a condition which causes severe disfigurement of teeth. The lawsuit was filed on 31 August 2011, in the U.S. District Court in Maryland.

The parents claim that around 90% of the water consumed by the girl when she was a baby and young child was fluoridated bottled water sold by Nestle. The parents want compensation for the costs associated with repairing their daughter’s teeth, estimated to be over US$100,000.

Prosecuting law firm Nidel Law, based in Washington DC, has cited information offered by the US Federal Government’s Center for Disease Control and Prevention (CDC). Based on information cited as being from the CDC, the claim is that when fluoride is ingested by people under the age of eight, there is a “significant risk of harm”.

A statement published on Nidel Law’s website said that the defending companies knew their products contained fluoride and actively marketed these products to children under the age of eight. The statement said that the defendants’ failure to warn of the risk of harm from these products is “unacceptable”.

Case outcome could set a legal precedent in the United States

The outcome of this case could change the way companies can legally market fluoride-fortified food and drink products.

Public health professional Daniel Stockin of The Lillie Center Inc., a US firm working to end water fluoridation, said that the legal case is the first in an expected flood of public and private sector claims.

Mr Stockin said, “Millions of people have dental fluorosis, and minority populations are disproportionately harmed by it. People are not being openly told what fluorosis really is or how it can impact their lives. I think it will be very interesting to see the revelations that come out now, as fluoride product sellers and fluoridated water endorsers begin to be placed under oath in all sorts of fluoride-related legal actions.”

Australian implications for marketing of fortified foods and functional foods

According to Australian food law expert Joe Lederman of FoodLegal, there have been opponents to mandatory water fluoridation in Australia for many years. However, the outcome of this legal case could have consequences beyond mandatory fortification laws in Australia (where tap water is fortified with fluoride). “The implications are huge if it can be legally demonstrated that ingestion of fluoride for children under eight years old is in fact harmful,” he said.

“It should also be noted that Food Standards Australia New Zealand (FSANZ), which is the Australian government agency responsible for developing scientifically-based food standards for Australia, permitted fluoride to be added to bottled beverages in July 2009,” Mr Lederman said. FSANZ’s permission followed an application by the Australian Beverages Council Ltd for approval to voluntarily add fluoride to packaged (bottled) waters in November 2008, reported at the time by Australian Food News. For many years, the ordinary water supplies of most Australian cities outside Queensland have been fluoridated. Therefore, the application to FSANZ would not have seemed out of the ordinary.

Mr Lederman pointed out, however, that this American case was dealing with beverages and food products that had been fortified for a particular functional property in relation to the health of the targeted consumer.

Mr Lederman said that the law in America and Australia required duty of care in relation to composition and labelling. “This was potentially different from a mandatory fluoride-fortification scenario but any adverse legal findings about safety of fluoride in this case would have wider legal ramifications for any food company marketing a food that was fortified for a particular functional attribute.

“When it comes to a product developed for the consumer market, the decision to fluoridate and to market the functionality of that product is not about a public health benefit. Rather, it is about the accuracy of the health claims that are being made and whether the duty of care (in relation to composition and labelling) has been breached,” he said.

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