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AGO 1949 No. 162 - November 17, 1949
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Smith Troy | 1941-1952 | Attorney General of Washington


Department of Health is responsible that methods of fluoridation of water is not dangerous to users.

Department of Health should promulgate and enforce rules pertaining to fluoridation of water.

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                                                               November 17, 1949

John A. Kahl, M.D., M.P.H.
Acting Director
Department of Health
Smith Tower
Seattle 4, Washington                                                                                                              Cite as:  AGO 49-51 No. 162

Attention:  !ttJ. L. Jones, M.D.
            Assistant State Director of Health

Dear Sir:

            We have your letter of October 28, 1949, in which you ask the following questions:

            1. What is the responsibility of the Department of Health as to fluoridation of a public water supply in a specific community?

            2. What action should be taken by the Washington State Board of Health when it receives information that the fluoridation of the water is being carried on or contemplated by a person, persons, firm, corporation, municipality or public utility operating a public water supply system?

            The conclusions reached may be summarized as follows:

            1. Where a local public water supply system adopts or intends to adopt the fluoridation method of treating water, the Department of Health is responsible that the methods employed are not dangerous to the users of the water.

             [[Orig. Op. Page 2]]

            2. The Washington State Board of Health should promulgate proper rules and regulations pertaining to fluoridation and should enforce such rules and regulations.


            Section 1, chapter 116, Laws of 1901 [6001 Rem. Rev. Stat.] gives the Washington State Board of Health broad powers and duties as to the "preservation of the life and health of the people of the state."

            Sections 290 and 291, chapter 249, Laws of 1909 [2542 and 2543 Rem. Rev. Stat.] and chapter 70, Laws of 1899 [9473, 9475, 9476 and 9477 Rem. Rev. Stat.] contain numerous provisions, both penal and otherwise, designed to insure the purity of water supplies.

            It is fair to conclude from the documents submitted by you that while the fluoridation of public water supplies is designed to bring about better teeth in the younger generation through the action of the fluoride as a caries prophylactic that the available evidence, while supporting such hypothesis, is at the present time presumptive only.  Also, that the proper various amounts of fluoride concentration are yet to be determined for different geographical locations.  Also, that the amount of fluoridation may prove injurious to the public if too great an amount be used.  Also, that the application of fluoride should be carefully watched so that such will not prove harmful to the various persons who apply the same.

            We have no knowledge as to what, if any, local water systems are using or seeking to use fluoridation of their water systems.  You mention that there is an increasing interest in certain instances among the owners of public water systems to investigate the fluoridation of water.  We do not believe that your statutory duties require you to stimulate such interest or to take a lead therein.  However, when any owner of a public water system calls on you for advice or you learn that such owner has begun or contemplates beginning the fluoridation of water, then it is your duty to act.  You should promulgate such rules and regulations as should be used in such systems as you may deem necessary.  We cannot give exact information as to just what such rules and regulations may be, because the formation of same is essentially a matter for expert opinion in that field.  So long as such rules and regulations are in accord with accepted principles and are in accordance with the best views of experts in that field, you will have done all the law requires.

             [[Orig. Op. Page 3]]

            There would be no legal responsibility resting upon you if you issue such rules and regulations so long as you, in the issuance of such rules and regulations, follow the generally accepted principles as to the same, and so long as such rules and regulations generally are in accordance with the best views of experts in the field.  The rule is best stated in 25 Am. Jur., page 295, as follows:

            "The general rule is that incorporated boards of health which are invested by statute with functions of a public nature, to be exercised for the public benefit, are not liable for injuries resulting from the performance of their official duties in the promulgation and enforcement of health regulations, so long as they act within the limits of their authority and discretion, * * *"

            See alsoState ex rel. McBride v. Superior Court, 103 Wash. 409, 174 Pac. 973;Franklin v. Seattle, 112 Wash. 671, 192 Pac. 1015,State ex rel. Lehman v. Partlow, 119 Wash. 316, 205 Pac. 420, Hacker v. Barns, 166 Wash. 558, 7 P. (2d) 607.

            In theHacker case, supra, which involved the Agricultural Department and the so-called "tuberculin test" for cattle supposed to be suffering from tuberculosis, the efficacy of the tuberculin test was very much in dispute.  In a sense, such stipulation was comparable to the situation facing you in the fluoridation matter.

            In addition to the promulgation of rules and regulations, you of course should take the proper steps to see that such rules and regulations are adhered to in instances where fluoridation is adopted.

Very truly yours,

Attorney General

Assistant Attorney General

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