Tuesday, July 28, 2009

Get ready! Watershed Event in Mercury Fillings History: An Update From Charles G Brown, Nat'l Counsel, Consumers for Dental Choice

Watershed event in history of mercury fillings coming this week


The turning point of our movement comes this week. Because of our landmark lawsuit, the U.S

Food and Drug Administration must now set the ground-rules for the use of mercury fillings, an 

action that agency refused to take for 30 years until we filed the case of Moms Against Mercury et 

al. v. Von Eschenbach.


Due to our years of work -- your work, my work, this movement’s work -- our moment has arrived.

FDA no longer sits in the hip pocket of the American Dental Association on this issue.  We are going

to get a regulation that moves us to the middle of the playing field.  Don’t get your hopes too high --

neither side will get the victory each seeks.  But the mercury secret -- hidden for years by

manufacturers, the American Dental Association, and the FDA -- will be out this week.


Consumers for Dental Choice has a ten-point plan to try to turn this event into the beginning of the

end of mercury fillings -- we will challenge manufacturers and distributors, insurance companies and

Medicaid agencies, Wall Street and trial lawyers.  If the American Dental Association realizes this is

the end of the road for its 19th-century foundation-stone, fine.  If not, it can fall on its poisonous



For the past six months, we have executed an aggressive program to keep the issue front-and

center at FDA, via work on Capitol Hill and with the media.  And we challenged the Commissioner

herself.  I wrote two letters of objection to FDA Commissioner Margaret Hamburg about her five

years as a board member of Henry Schein Inc., the colossal dental products distributor.  My

challenge succeeded: Commissioner Hamburg recused herself from participating in the rulemaking!


Remember how desperate things were when we started, in the mid-1990s? Dentists were silenced by

the gag rule… almost all consumers were unaware that “silver fillings” are mainly mercury… the

system was held in place by the Iron Triangle of the ADA, the FDA, and state dental boards.  Two

true visionaries -- one in the East, one in the West -- created Consumers for Dental Choice:  Bob

Jones of Colorado (now Texas) and Sue Ann Taylor of Georgia.  Inspired by Hal Huggins, we began.


In the first phase of our movement, we knocked out the notorious gag rule in state after state --


and Washington.  This trailblazing work was done by consumer activists like Carol Ward, the late

Maz Levy, and Joyce Van Haaften; lawyers like Jim Turner, Sandy Duffy, Sandy Keech, and Shawn

Khorrami, filmmakers like Sue Ann Taylor; writers like Mark Genrich, dentists like Terry Lee, Andy

Landerman, Milt McIlwain, Mark Breiner, and Ada Frazier; and dental board members like Ron

King and Jessica Saepoff.  Dentists could finally advocate, advise, and advertise mercury-free


The second phase was about informing consumers: we gained fact sheet laws and ensured their 

enforcement (often the more difficult task).  In California, we created a political tsunami by shutting 

down the dental board, an act that sent shock waves to every other state dental board.  Led 

by Anita Vazquez Tibau, advised by consultant Pete Conaty, and chronicled by filmmaker Kelly 

Gallagher who is producing a movie about this movement, we had activists like Bill Magavern and 

dentists like Ward Eccles on the outside and new dental board members Chet Yokoyama and Kevin 

Biggers on the inside.  The Philadelphia fact sheet project was led by Freya Koss; in Maine it was 

Pam Anderson; in New Hampshire Rosie Cronin; and in Connecticut Mark Mitchell and media guru 

Mike London.  Outstanding lawmakers wrote these laws: Diane Watson of California, Mike Michaud 

of Maine, Hal Lynd of New Hampshire, and Blondell Reynolds Brown of Philadelphia


The third phase of our work involved taking on FDA:  With state laws implemented, with the dental 

board threat to our dentists fading, with our movement having national respect, we could have real 

impact -- and we did.  Attorney Johann Wehrle, at the time a law student, designed a plan to 

challenge the agency, first via petitions, then a lawsuit.  In between petitions and lawsuits was the 

dramatic September 2006 hearing of the FDA Scientific Advisory Committees where the scientists, 

led by Dr. Mike Fleming, voted 17 to 7 that FDA staff was wrong when it said mercury fillings are 

safe.  After that vote, Dr. Rich Fischer led a team of scientists to urge FDA staff to change their 

position.  All along, our friends in Congress, led by Diane Watson and Dan Burton, were holding 

FDA's feet to the fire by insisting that the agency follow the law.  

But the inertia continued.  So we filed suit in December 2007 and moved for an injunction in April 

2008.  At a hearing in May, Judge Ellen Huvelle ruled that we were entitled to a regulation by FDA

on a date certain, but to no other relief; she ordered the parties into mediation.  At an intense

negotiation session, we insisted on warnings in the interim between then and the classification date. 

We got them in the website --- the best advisories issued by any national health agency on dental

mercury’s irreversible damage to children: "Dental amalgams contain mercury, which may have

neurotoxic effects on the nervous systems of developing children and fetuses."   The overwhelming

and positive worldwide press response made clear that FDA had crossed its own Rubicon on the

mercury amalgam issue.

The plaintiffs in this landmark litigation who stayed the course were Moms Against Mercury (Amy

Carson and Angela Medlin), Connecticut Coalition for Environmental Justice (Dr. Mark Mitchell),

Oregonians for Life (Mary Starrett), Michael Bender, Senator Karen Johnson, Linda Brocato, Dr. Andy

Landerman, Anita Vazquez Tibau, and of course Consumers for Dental Choice.

We didn’t get this far by ourselves.  We built broad alliances.  Michael Bender of the highly effective

Mercury Policy Project leads the environmentalists; Ed Hogan and Emmitt Carlton reached out to

minority communities; Sandy Duffy recruited civil libertarians; and Sister Valerie Heinonen linked us

to the faith community.  And we have had volunteers who have logged hundreds of hours, such as

Barbara Pierson, Mary Ann Newell, Linda Brocato, Elizabeth Wright, and Karen Burns, to name a



With the FDA rule, we will enter our fourth -- and I firmly believe, final -- phase: the demise of

amalgam fillings.  The momentum is ours.


The key to the upcoming rule, not surprisingly, will be the fine print:  the new Special Controls.

That will tell us if the rule is strong or weak.  My focus is the children: if we can protect boys and

girls, if we can protect the unborn, we have prevented amalgam from going to the most vulnerable. 

From there, we can build toward ultimate victory.

If the FDA rule is abysmal -- if it contradicts its own website advisory for children and pregnant

women that we negotiated to settle the lawsuit -- we intend to appeal.  But, first we must see the

rule FDA is unveiling this week.


--- Charlie

     27 July 2009



Charles G. Brown, National Counsel

Consumers for Dental Choice

316 F St., N.E., Suite 210, Washington, DC 20002 

Ph. 202.544-6333; fax 202.544-6331



Working for Mercury-Free Dentistry


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