Expert advice has cast doubt over the legality of supplying fluoridated water.
Port Macquarie-Hastings Council sought legal advice after approaches from a number of residents.
The council considered Senior Counsel Tim Robertson's memorandum of advice in the confidential section of its June meeting and has since made the legal advice public.
The legal advice says fluoridated water is an unregistered therapeutic good under the Therapeutic Goods Act, which binds the council.
"Its supply of fluoridated water is in breach of the Act until fluoridated water is registered as a therapeutic good or excluded from the TG Act," the report said.
"Council is exposed to both criminal and civil penalties."
But the council is required to supply fluoridated water unless approval or direction is revoked by NSW Health.
It is understood in the past no approvals have been given to any NSW council to cease fluoridation.
The legal advice says that obligation to supply fluoridated water is inconsistent with the prohibition on its supply imposed by the Therapeutic Goods Act.
The Therapeutic Goods Act overrides the Fluoride Act, by virtue of section 109 of the Australian Constitution.
A spokesperson for the Therapeutic Goods Administration (TGA) said the TGA did not consider fluoridated reticulated drinking water to be therapeutic goods within the meaning of the Therapeutic Goods Act 1989.
"As a consequence, the TGA does not consider the supply of such water to amount to a contravention under the Act," the spokesperson said.
The TGA's position is stated on its website.
"However, noting recent alternative views communicated by the Port Macquarie-Hastings Council, the TGA is considering the most appropriate means to clarify its position further," the spokesperson said.
Citizens Against Fluoridation ex-president Paul Jones said he was absolutely delighted with the council's legal advice.
The legal advice had buoyed those against water fluoridation.
"It has given us encouragement and it's leading to an upsurge of enthusiasm among the people that were involved in the campaign against fluoridation," Mr Jones said.
The council, through Lindsay Taylor Lawyers, is seeking details about licensing/registration from the Therapeutic Goods Administration.
A council spokesperson said as per the council resolution, the council would await a response from the Therapeutic Goods Administration before determining any course of action.
The council has requested Local Government NSW and Australian Local Government Association raise the issue with their boards and subsequently their members with a view to form a position for advocacy purposes.
The council has also requested NSW Health's opinion on the issues raised in the legal advice.
"Registration of therapeutic goods is a matter for the Australian Government Therapeutic Goods Administration (TGA). The TGA states that fluoridated drinking water is not a therapeutic good," a NSW Health spokesperson told the Port News.
"The NSW government strongly supports fluoridation of drinking water, and will continue to work with councils on fluoridation in the interest of the health of people in NSW.
"It has been in place for over 60 years, and is available to the vast majority of Australians."
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