Nemphos v. Nestle Waters North America, Inc., et al.
When Michelle Nemphos’ daughter’s adult teeth started erupting, she was dismayed to see very bright white spots on her teeth. And Nemphos was surprised because she had been careful to ensure her daughter had almost exclusively fluoridated water from the time she was an infant so that she would have healthy, strong teeth. What Nemphos didn’t know at the time, and was only confirmed after the fact by her daughter’s dentist, is that her daughter had fluorosis and that ingesting fluoride, like that contained in the fluoridated bottled water marketed for children, was the cause of the damage to her teeth.
Nemphos sued under state law in Maryland to get help for her now-16-year-old daughter’s expensive current and future dental care. The district court dismissed the case, saying federal law pre-empted the Maryland law. Public Justice is one of the groups representing Nemphos in her appeal. The Fourth Circuit has decided to hear argument in Nemphos, and they’ve tentatively calendared it for mid-May.
Although fluoride has recognized dental health benefits, it can permanently damage teeth when consumed by children under the age of 8 – a danger of which there is little public awareness, but has long been known by federal agencies and the food and beverage industry.
Despite that, bottled water manufacturers Nestle and Dannon specifically marketed fluoridated bottled-water as especially good for children. In fact, Nestle called its product “the one designed with kids in mind”— without mentioning any of the dangers — to entice well-meaning parents to purchase the child-size beverage.
Nemphos did just that, believing that products containing fluoride would help strengthen her daughter’s teeth. For the first 8 years of her daughter’s life, Nemphos gave the child Nestle’s and Dannon’s fluoridated bottled-water. As a result, her daughter developed dental fluorosis, a condition that irreversibly damages adult teeth by causing discoloration and staining in mild cases and, in severe cases, gives the teeth rough, pitted surfaces leaving the teeth porous and easily broken. The damage is expensive to correct, often requiring veneers or dental implants.
The only cause of dental fluorosis is fluoride consumption during childhood.
Dental fluorosis is a growing public health concern. The incidence has almost doubled in 20 years, mostly due to the addition of fluoride to municipal water and commercial food and beverage products. The most recent study by the CDC estimates that 41 percent of young teens had the condition in the early-2000’s, up from 23 percent in the mid-1980’s.
Advertising like Nestle’s and Dannon’s, which induce consumers to purchase a product by touting an ingredient’s benefits without warning of that same ingredient’s known hazards, is generally prohibited by state tort and consumer protection laws. Those laws allow wronged consumers to sue for injuries the product caused.
But lawsuits over damage caused by fluoride consumption might be thrown out due to federal preemption of laws governing food standards—meaning that any dental fluorosis lawsuits brought under state laws are wiped out by federal laws, leaving injured children without redress. This is an unsupported expansion of the scope of federal preemption under the relevant federal laws and improperly removes health and safety regulations from the state’s authority, despite being traditionally reserved to the states.
That’s what the federal district court allowed to happen to Nemphos.
Nemphos attempted to recoup the high cost of her daughter’s dental care and sued on the child’s behalf in Maryland under state claims, as well as the Maryland Consumer Protection Act. The MCPA prohibits manufacturers from making false and misleading statements.
The case is Nemphos v. Nestle Waters North America, Inc., et al.
But the federal trial court in Maryland dismissed the case, improperly holding that Nemphos’ claims are preempted by the federal Nutritional Labeling and Education Act.
The NLEA requires manufacturers to disclose the ingredients in food, but does not require safety warnings about those ingredients. The court held that the case was preempted because, by suing under Maryland’s MCPA, Nemphos was asking the court to enforce a state labeling standard different from the federal standard.
Nemphos appealed the ruling, and the U.S. Court of Appeals for the Fourth Circuit has agreed to hear the case. The appeal, tentatively set for May, will determine whether state laws that require manufacturers to warn of product dangers like childhood fluoride consumption are preempted by federal laws governing food identity.
Public Justice Kazan-Budd Attorney Leah Nicholls serves a lead attorney with Senior Attorney Leslie Brueckner as co-counsel for Nemphos in the appeal, along with Christopher Nidel of Nidel Law P.L.L.C. and Christopher T. Nace of Paulson & Nace, PLLC.
When federal laws like the NLEA are insufficient to protect the public, civil litigation can be a vehicle to force manufacturers to reconsider their use of dangerous ingredients and end their deceptive advertising. A finding for the defendants in Nemphos would not only bar injured parties from seeking reimbursement, it would allow manufacturers to harm even more children.
