USE OF DENTAL AMALGAM

http://www.cga.ct.gov/2005/rpt/2005-R-0691.htm [4/25/2011 11:54:22 AM] Topic: DENTISTS; ENVIRONMENTAL PROTECTION DEPARTMENT; LEGISLATION; MEDICAL CARE; Location: DENTISTRY;

September 21, 2005 2005-R-0691

USE OF DENTAL AMALGAM

By: Paul Frisman, Associate Analyst
You asked for a summary of Department of Environmental Protection (DEP) Commissioner Gina McCarthy’s declaratory ruling on the use of dental amalgam containing mercury.
SUMMARY In a September 8, 2005 decision , Commissioner McCarthy ruled that the Mercury Education and Reduction Act’s (PA 02-90) ban on the sale of certain products to which mercury has been added does not apply to dental amalgam because the amalgam is elemental mercury (mercury in its pure form), the use of which is allowed under certain conditions . She further found that the legislature did not intend to ban the use of dental amalgam when it approved the act. Commissioner McCarthy issued the ruling after receiving a written request to clarify the provisions of PA 02-90 regarding dental amalgam.
BACKGROUND The Mercury Education and Reduction Act PA 02-90 (CGS § 22a-612 et seq . ), among other things, declares mercury to be a toxic pollutant that accumulates in the environment and calls for the virtual elimination of manmade mercury. According to the U. S. Environmental Protection Agency, high levels of mercury exposure can harm the brain, heart, kidneys, lungs, and immune system. The law regulates the sale and distribution of mercury and products that contain it. It requires labeling of certain products to which mercury has been added, and bars people from selling or distributing certain mercury-added products unless the manufacturers have provided DEP with plans for their collection. The law (CGS § 22a-617) bans the sale of most mercury-added products. Specifically, it bans products containing more than 1 gram or 250 parts per million (ppm) of mercury starting July 1,USE OF DENTAL AMALGAM

http://www.cga.ct.gov/2005/rpt/2005-R-0691.htm [4/25/2011 11:54:22 AM] 2004. It bans the sale of most products containing more than 100 milligrams or 50 ppm of mercury starting July 1, 2006. Other provisions of the law allow the continued use of elemental mercury, but impose restrictions on its sale and distribution, including to dentists.
MERCURY BAN AND DENTAL AMALGAM Mercury comprises between 40% and 50% of the dental amalgam used in silver fillings. It has been used for more than a century to bind together the mixture of silver, tin, copper and other metals that comprises the rest of the filling. Public interest groups assert that the law bans the use of dental amalgam with mercury content exceeding the limits set by CGS § 22a-617. Commissioner McCarthy initiated declaratory ruling proceedings to address that concern in April 2005, and held two public meetings in May 2005, one of which sought public comment. The department received extensive comments from legislators, dentists, environmental organizations, the state Department of Social Services, groups opposed to the use of amalgam, and other members of the public. In addition, McCarthy granted intervenor status to three organizations: Consumers for Dental Choice, the state Dental Commission, and the Connecticut State Dental Association.
COMMISSIONER MCCARTHY’S RULING Commissioner McCarthy ruled that the law allows dentists to continue using dental amalgam. Among other things, she found that (a) legislators did not intend to ban the use of mercury when they approved PA 02-90; (b) the law specifically permits its use in dental schools and by dentists under certain conditions; and (c) it is properly considered elemental mercury rather than a mercury-added product, and therefore its sale or use is not banned by law. The commissioner determined that any other interpretation of the law would create more of an environmental hazard, rather than less, and therefore would be inconsistent with the law’s purpose. McCarthy’s ruling is not meant to determine the general health or environmental impacts of the use of mercury in dentistry or whether as a general policy the use of mercury-containing amalgam by dentists should be allowed. Rather, the decision only interprets how state law applies to the use of mercury by dentists. Legislative Intent Commissioner McCarthy noted that in neither the House nor Senate discussions of the bill (introduced by Rep. Stratton as a House amendment) was there mention of a dental amalgam ban. The commissioner cited a colloquy in the House between Reps. Stratton and Sawyer indicating that the bill would not significantly change current dental practice. “In fact,” the commissioner wrote, “there is no indication in any of the legislative history...that any legislator was seeking or even contemplating a ban on the use of amalgam. ” McCarthy also pointed out that no one raised the issue during Environment Committee hearings on the bill. “I am simply unable to divine an intent to ban mercury in dentistry...when the only legislative discussion addressing this issue points squarely in the direction of maintaining the status quo,” she wrote. Further buttressing this view, she said, was the legislature’s inclusion of a provision (codified as CGS § 22a-616) allowing dental schools to use amalgam only if they properly handle and recycle or dispose of waste elemental mercury and amalgam. “The General Assembly would not haveUSE OF DENTAL AMALGAM

http://www.cga.ct.gov/2005/rpt/2005-R-0691.htm [4/25/2011 11:54:22 AM] authorized vocational or training schools to use mercury amalgam under § 22a-616,” she wrote, “if under § 22a-617(a) such amalgam could no longer be purchased. ” The commissioner rejected claims that § 22a-616 refers only to existing fillings, or was intended to operate only until the ban took effect. Is Dental Amalgam a Mercury-added Product or Elemental Mercury? The classification of dental amalgam is very important. If it is a product to which mercury has been added, it could be argued that dental amalgam exceeding the legal limits should be banned under CGS § 22a-617. But this ban does not affect elemental mercury, because such mercury is, by definition, not a product to which mercury has been added. Commissioner McCarthy looked at the packaging of dental amalgam in deciding whether it should be considered a mercury-added product or elemental mercury. Although dentists can purchase bulk elemental mercury and the alloy mixtures separately, McCarthy said they most often purchase the amalgam in pre-packaged capsules in which the mercury and alloy powder are kept separate, but can be mixed within the capsule as needed. (She said the total amount of mercury in these capsules ranges from 327 to 982 milligrams, depending on the size of the capsule. ) On one hand, McCarthy said, these capsules could be seen as a product to which mercury is added. But it also could be argued that a capsule is simply a convenient, safer way to buy elemental mercury. McCarthy adopted the latter view, because she said it allows the law to be read in an internally consistent manner and better accomplishes the act’s environmental and health goals. Allowing dentists to purchase elemental mercury in bulk form, but prohibiting them from buying the pre-packaged capsules, she said, would force dentists to handle mercury and mix it “in a manner that would lead to greater spillage and its attendant exposure to mercury. ” Such a reading, she wrote, “makes no sense. ” McCarthy dismissed a reading of the law that would have allowed dentists to purchase elemental mercury, but not use it to make amalgam, as well as a claim that DEP had already defined dental amalgam as a type of mercury-added product and therefore subject to the ban. McCarthy noted that eliminating the use of mercury in dental amalgam would have more than environmental implications. “There are clearly significant public health, fiscal and insurance issues that must be considered in addition to any environmental concerns,” she wrote. “Without any clear indication that the General Assembly intended such a result, I am unable to interpret the act as imposing such a ban. ” She also noted that no state has banned the use of mercury amalgam in dentistry.
FURTHER DEP ACTIONS The commissioner said she would take steps to enforce PA 02-90 as it affects dental amalgam, and to notify dental patients of the presence of mercury in fillings. The act requires dentists to install and use amalgam separators, which remove amalgam waste from dental office wastewater. McCarthy said DEP will ensure that dentists properly maintain these appliances and that all mercury is properly disposed of or recycled. She said DEP will also require dentists to prominently display a brochure informing patients about the presence of mercury in fillings and possible alternatives.
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