JAMES ROBERT DEAL ATTORNEY PLLC
PO Box 2276, Lynnwood, Washington 98036-2276
Telephone 425-771-1110, Fax 425-776-8081
February 7, 2012
Dear Legal Department,
I am writing to you to express concern regarding the health and safety of the industrial grade fluorosilicic acid which Simplot sells to the City of Everett and to ask questions regarding the same.
My interest in this matter is personal. I reside in Lynnwood Washington. Lynnwood is a “captive” water district of Everett, meaning that it buys water from Everett and delivers it to my home, including Simplot’s industrial grade fluorosilicic acid. Lynnwood never voted to have industrial grade fluorosilicic acid added to our water, and we would like it out.
The fact that the NSF mark appears on the Simplot Certificate of Analysis means that Simplot applied for and received NSF approval for the right to display said NSF mark. Said mark is valuable. It can be posted on the Simplot Certificate of Analysis, on the Simplot web site, and in Simplot sales materials. Without it Simplot could not sell industrial grade fluorosilicic acid for drinking water fluoridation in most of the United States. With it, Simplot can sell Everett a tanker load every three weeks on average, that is, 5,000 gallons per load at a cost of around $16,200, thus producing annual revenues of around $290,000 for Simplot, less commission paid to the distributor.
FSA (fluorosilicic acid) is also known as HFS (hydro fluorosilicic acid) finds its largest use in fluoridating drinking water throughout the US.
Simplot’s industrial grade fluorosilicic acid Certificate of Analysis is delivered to Everett by Cascade Columbia Distribution Company of Seattle along with Cascade Columbia’s invoice and bill of lading. Cascade Columbia collects the retail sale amount from Everett, and pays the wholesale proceeds to Simplot.
Simplot is thus aware that its fluorosilicic acid is being sold – through distributors – to Everett specifically to fluoridate the drinking water of Everett plus all the other “captive” water districts which buy water from Everett.
Standard 60 … requires a toxicology review to determine that the product is safe at its maximum use level and to evaluate potential contaminations in the product. … A toxicology evaluation of test results is required to determine if any contaminant concentrations have the potential to cause adverse human health effects. …
For each substance requiring a new or updated risk assessment, toxicity data to be considered shall include but not be limited to, assays of genetic toxicity, acute toxicity …, short term toxicity …, subchronic toxicity …, reproductive toxicity, developmental toxicity, immunotoxicity, neurotoxicity, chronic toxicity (including carcinogenicity), and human data (clinical, epidemiological, or occupational) when available. To more fully understand the toxic potential of the substance, supplemental studies shall be reviewed, including, but not limited to, mode or mechanism of action, pharmacokinetics, pharmacodynamics, sensitization, endocrine disruption, and other endpoints, as well as studies using routes of exposure other than ingestion. Structure activity relationships, physical and chemical properties, and any other chemical specific information relevant to the risk assessment shall also be reviewed. …
When Simplot applied for NSF 60 certification, Simplot should have prepared and presented the above mentioned “toxicology review”, “toxicological evaluation”, and “toxicity data” to NSF. NSF repeatedly states in its 2008 Factsheet on Fluoridation that such toxicological evaluations are “required”. NSF never states that NSF is providing the “toxicology review”, “toxicological evaluation”, and “toxicity data”, which would imply that the supplier is to provide them.
If you have such “toxicology review”, “toxicological evaluation”, and “toxicity data”, please send them to me at the above address. Send them also to the City of Everett. If you do not have said materials, please confirm that fact.
Given the fact that the NSF materials do not make it absolutely clear whether the suppliers or NSF is responsible to provide “toxicology review”, “toxicological evaluation”, and “toxicity data”, then both parties would be jointly responsible either to provide the “toxicology review”, “toxicological evaluation”, and “toxicity data” or to confirm that the other party has provided them. Simplot ought to demonstrate that it has done its due diligence by providing such “toxicology review”, “toxicological evaluation”, and “toxicity data” or by confirming whether NSF has obtained such “toxicology review”, “toxicological evaluation”, and “toxicity data”.
In obtaining the NSF 60 mark and selling fluoridation materials bearing that mark, Simplot is assuming all the representations that NSF makes about fluoridation materials and vouching for their truth, including the NSF representation that that NSF possesses “toxicology review”, “toxicological evaluation”, and “toxicity data”, whether provided by Simplot or by NSF.
If Simplot has not prepared such “toxicology review”, “toxicological evaluation”, and “toxicity data” or has not provided the same to NSF, or if Simplot has failed to confirm that NSF has such “toxicology review”, “toxicological evaluation”, and “toxicity data”, or worse, if Simplot has confirmed that NSF does not possess such “toxicology review”, “toxicological evaluation”, and “toxicity data”, then Simplot has reason for concern.
Without said “toxicology review”, “toxicological evaluation”, and “toxicity data”, Simplot’s industrial grade fluorosilicic acid fails to meet the stated standard of NSF 60. This is relevant because Washington state law is very clear that if fluoridation is to take place in Washington, it may only be done using fluoridation materials which “comply with” the NSF 60 standard. See WAC 246-290-220(3).
If neither Simplot nor NSF has “toxicology review”, “toxicological evaluation”, and “toxicity data”, then a fundamental component of the NSF 60 standard is not present, and therefore Simplot industrial grade fluorosilicic acid does not “comply with” the NSF 60 standard. Thus, it would be illegal to sell said industrial grade fluorosilicic acid for drinking water fluoridation in Washington.
Simplot, other suppliers, and NSF could be accused of being part of a joint plan to sell fluoridation materials which do not meet the requirements of the NSF 60 standard and thus are in violation of Washington law.
The City of Everett relies on the fact that Simplot industrial grade fluorosilicic acid is NSF 60 certified. The City of Everett assumes the truthfulness of the representations and warranties made by NSF regarding Simplot’s industrial grade fluorosilicic acid.
In its MSDS Simplot issues the following disclaimer:
NO WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED, IS MADE CONCERNING THE INFORMATION HEREIN PROVIDED. It is the user’s responsibility to satisfy himself as to the suitability and completeness of such information for his own particular use. We do not accept liability for any loss or damage that may occur from the use of this information nor do we offer warranty against patent infringement.
At the same time, if Simplot posts the NSF 60 “mark” on its Certificate of Analysis, it is also negating the above disclaimer of representations and warranties which Simplot makes in its MSDS. Thus, the above disclaimer may be ineffective to provide Simplot with any protection.
If Simplot is unwilling to make all the representations and warranties which NSF makes regarding Simplot’s fluoridation materials, then Simplot should terminate immediately the sale of industrial grade fluorosilicic acid to customers whom Simplot knows to be using it to fluoridate drinking water.
If Simplot becomes aware at any time that the representations made by NSF are not true – that is that neither Simplot nor NSF possesses said “toxicology review”, “toxicological evaluation”, and “toxicity data”, then again NSF should terminate immediately the sale of industrial grade fluorosilicic acid to customers whom Simplot knows to be using it to fluoridate drinking water.
In its defense, perhaps Simplot can argue that the EPA or CDC or ADA deceived Simplot into selling industrial grade fluorosilicic acid to water districts for drinking water fluoridation, and that until now Simplot has not realized that what it is doing might appear to be part of a scheme to misrepresent the safety of industrial grade fluorosilicic acid as a fluoridation material or to bypass Washington law.
The best way for Simplot to reduce its potential responsibility for this apparent misrepresentation would be to terminate immediately the sale of industrial grade fluorosilicic acid to the City of Everett and to any other water district which uses industrial grade fluorosilicic acid for fluoridation.
Simplot could raise in its defense that the law and science of fluoridation are complex, so complex that Simplot did not understand until now the potential illegality of its acts.
Therefore, in order to bring Simplot up to date on the law and the science of fluoridation, I am sending Simplot copies of the same materials which I have submitted to Attorney General Eric Holder in Washington, to US Attorney Jenny Durkin in Seattle, to Attorney General Rob McKenna in Olympia, to Snohomish County Prosecutor Mark Roe in Everett, and to King County Prosecutor Daniel T. Satterberg in Seattle.
To gain a broad understanding of this issue, I recommend Simplot start by listening to a presentation which three safe water groups made to the Seattle City Attorney’s office on January 9, 2012. Simplot may find the presentation at this link:
For a broad overview of how to apply the scientific issues to the legal issues, follow this link to the letter I wrote to Jenny Durkin, US Attorney for the Western District of Washington in Seattle:
To get the story of how this violation of law got started and why it has persisted, follow this link:
Follow these two links to two letters presented to HHS and EPA on the subject:
Finally, it is possible that Cascade Columbia Distribution Company, which also profits from the NSF 60 mark, may have some reason for concern, given the fact that it is a reseller of allegedly misrepresented and allegedly illegal fluoridation materials, and so I am sending a copy of this letter to Cascade Columbia.
Feel free to call me to discuss this matter.
James Robert Deal, Attorney
WSBA Number 8103
To make it easier to following links, the latest updated version of this letter, can be read online at www.Fluoride-Class-Action.com/Suppliers/Simplot.
Copy sent to:
Cascade Columbia Distribution Company
6900 Fox Avenue South
Seattle WA 98108