A Toxic Mouthful: the Misalignment of Dental Mercury Regulations

Abstract: Mercury amalgam dental fillings have been used for over one hundred and fifty years in hundreds of millions of patients around the world. In the past two decades, scientific evidence has shown that mercury fillings have harmful effects on human health. Still, the American Dental Association maintains the position that mercury fillings are safe and should continue to be used without warning requirements. Although the Occupational Safety and Health Administration promulgated regulations to protect dentists and other dental workers from mercury exposure, the Food and Drug Administration has yet to provide similar protections to dental patients. Additionally, because Medicaid does not cover alternative fillings, many low-income Americans are forced to choose between mercury fillings or no fillings at all. Although other countries have banned or severely restricted the use of mercury fillings, the United States has yet to enact federal legislation on the issue. This Note argues that Congress should ban mercury fillings or, at a minimum, implement uniform warning requirements and mandate insurance and Medicaid coverage for alternative fillings.IntroductionSpecial Smiles LTD is a Medicaid-funded dental clinic in Northern Philadelphia that provides treatment to children with disabilities.1 Several other clinics have been built on the Special Smiles model as part of Pennsylvania's effort to improve access to oral health services for low- income, minority, and disabled populations.2 In 2007, the city of Philadelphia passed a law requiring dentists to provide patients with a fact sheet detailing the health risks associated with amalgam, a type of dental filling material that contains elemental mercury.3 Before receiving a restoration with amalgam, patients or their legal guardians must sign offon the fact sheet.4When the parents of Special Smiles's patients received the fact sheet and learned of the risks associated with mercury fillings, they were understandably alarmed.5 Elemental mercury is the purest form of mercury. 6 It is liquid at room temperature, but evaporates into mercury vapor. 7 Mercury vapor is toxic to humans when it is ingested or inhaled.8 Studies show that mercury vapor can damage the lungs, kidneys, and the nervous, digestive, respiratory, and immune systems.9 Mercury vapor has also been linked to tremors, impaired vision and hearing, paralysis, insomnia, emotional instability, and developmental deficits during fetal development.10 These risks are particularly alarming for Special Smiles's patients, some of whom already have neurological disorders.11The parents of Special Smiles's patients refused to sign the fact sheet, requesting that alternative filling materials be placed in their children's mouths.12 Special Smiles refused to provide treatment, including non-restorative treatments, such as basic cleanings, unless the parents would sign the fact sheet, thereby consenting to the use of mercury fillings.13 Because these parents could not afford to bring their children to other dentists, they were essentially forced to "take the crumbs their dentists offered: mercury fillings or no fillings."14Both the Pennsylvania Dental Association (PDA) and the Philadelphia County Dental Association (PSDS) endorsed Special Smiles's ultimatum.15 The Clinical Director at Special Smiles acknowledged that it would be a challenge for these parents to find another dentist.16 Thus, the parents were leftwith the difficult choice between dental care and exposing their child to a potentially serious health risk.17* * * * *Mercury amalgam fillings have been used for over one hundred and fifty years to repair cavities in countless patients.18 Mercury amalgam is formed when a softpowdered mixture of silver, tin, copper, and zinc binds with liquid mercury.19 The result is a putty-like material that hardens into a solid filling when it is placed in the tooth cavity.20 The mercury component is what holds the putty together while the dentist fits it into the cavity and it is also what makes the hard filling strong and durable enough to withstand chewing. …