Dear All,

Below is a little bit of good news in the battle to get the FDA to ban mercury amalgam fillings. It is a report from lawyer Charlie Brown, who indicates that citizens have won round one in their court case. According to Brown, “The United States Court of Appeals has rejected a motion by Food and Drug Administration lawyers to toss out” their case “on procedural or technical grounds.”

In this account Brown says that “Were FDA not dodging its legal duty to enforce the law, mercury fillings would no longer be on the market.” How those words echo. One could equally well write, “Were FDA not dodging its legal duty to enforce the law, fluoride could no longer be put into our drinking water or sold in prescriptions.”

We all know that getting US regulatory agencies to do their job -  the one we pay them for - of protecting our health, is not an easy business. Thus, it is in the interests of all those who are anxious to see the FDA regulate fluoride - the most prescribed medication in the US - to follow this court case very closely. We maybe next.

Paul Connett

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Round One to Us in Case Against FDA to Ban Mercury Fillings

The United States Court of Appeals has rejected a motion by Food and Drug Administration lawyers to toss out our case on procedural or technical grounds.  The case now moves forward to a ruling on the merits.  Winning the first round is significant, because courts and legislatures in recent years have limited the remedies for public interest groups petitioning for federal agencies obey the law.

To update:  On April 27, four nonprofit groups, two state officials, and three individuals,* with Bob Reeves and me as their lawyers, sued FDA seeking a ban on mercury fillings — because FDA is violating several federal laws.  FDA refuses to classify mercury fillings; FDA won’t do an environmental impact statement, and FDA approves mercury fillings without requiring proof of safety.  Were FDA not dodging its legal duty to enforce the law, mercury fillings would no longer be on the market.  We filed in the United States Court of Appeals for the District of Columbia, the nation’s second most important court.

The government moved to dismiss, arguing that we could not file the case in the appeals court and that the Court should allow FDA more time to complete its work.  We replied that a quarter of a century of deceiving the public by promising to regulate is long enough, and the Court of Appeals needs to pull the plug on FDA lawlessness.**  The court agreed the case has merit, and asked each side to submit briefs on the merits.  In the upcoming months — the legal team, Bob, Sandy Duffy, Johann Wehrle, and I — will be preparing briefs.

Three forces are now bearing down on FDA’s illegal and unconscionable protection of mercury fillings — oversight by the Senate Health Committee, rejection of FDA’s pseudoscience by two scientific panels, and this lawsuit   A day of reckoning may come, and come soon.

 Charlie Brown, 10/28/06

Charles G. Brown, National Counsel

Consumers for Dental Choice

1725 K St., N.W., Suite 511, Washington, DC 20006

Ph. 202.822-6307; fax 822-6309

charlie@toxicteeth.org, www.toxicteeth.org

 * Our nine petitioners “dream team” includes Moms Against Mercury, Connecticut Coalition for Environmental Justice, Oregonians for Life, California Citizens for Health Freedom, California Dental Board member Kevin Biggers, Arizona state Senator Karen Johnson, consumer advocate Linda Brocato, Dr. Andy Landerman, and consumer advocate Anita Vazquez Tibau.

** If you’re really bored these days and want to read legal briefs, I can send you ours.