NRDC Bottled Water Report – Pure Drink or Pure Hype?

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Gaping Holes in Government Bottled Water Regulation

The bottled water industry often makes the claim that it is far better regulated than tap water suppliers are. For example, the International Bottled Water Association (IBWA) testified in 1991 that “When compared to the level of regulation and scrutiny applied to tap water . . .bottled water consumers come out way ahead.” [103] IBWA asserted that “If one considers the full range of FDA consumer protection standards, bottled water safeguards have been more complete and protective for a longer time than tap water standards.” [104]

This continues to be the industry argument. In a 1998 fact sheet, for example, IBWA contends, “Quality is in every container of bottled water. It’s consistent and it is inspected and monitored by governmental and private laboratories. Unfortunately, tap water can be inconsistent — sometimes it might be okay while other times it is not.” [105] The IBWA further declares that “bottled water is strictly regulated on the federal level by the Food and Drug Administration (FDA) and on the state level by state officials. This ensures that all bottled water sold in the United States meets these stringent standards.” [106]

FDA Rules for Bottled Water Are Generally Less Strict than Tap Water Rules

Our in-depth review indicates that, with few exceptions, federal bottled water regulation is weaker than the tap water regulations facing city water supplies. The bottled water industry is disingenuous in pointing out that there are significant flaws in the tap water regulatory scheme, since many more flaws exist in bottled water rules. Although smaller tap water utilities sometimes face less stringent controls than do bigger cities, it still is clear that federal rules for city tap water generally are more stringent than those for bottled water.

For many years, under the Federal Food, Drug, and Cosmetic Act (FFDCA), FDA was supposed to adopt and apply to bottled water all EPA tap water standards within 180 days after EPA issued those standards. [107] FDA was authorized to refuse to apply the EPA tap water standards to bottled water in certain circumstances where it determined and published reasons explaining why they were inappropriate for bottled water. [108] What happened, however, was that rather than affirmatively making such determinations, FDA just could not seem to be able to get around to issuing bottled water standards or making determinations at all.

Historically, FDA has lagged in its obligation to apply the EPA standards to bottled water, having adopted only a fraction of EPA tap water standards and often being severely criticized for its inaction. For example, a 1995 Senate committee report noted:

FDA has been slow to act. FDA took 4 years to set standards for the 8 volatile organic chemicals (including benzene) regulated by EPA in 1989. FDA did not set standards for the 35 contaminants covered by EPA’s 1991 Phase II rulemaking until December, 1994. Standards for bottled water have not been issued for those contaminants regulated by the [EPA] Phase V rule for tap water, although it was promulgated by EPA in 1992 and became effective for tap water on January 1, 1994. [109]

Public and congressional criticism of FDA came to a head after benzene was found in Perrier in 1990, and congressional hearings and a General Accounting Office investigation in 1991 revealed widespread failures by FDA to adopt standards and to oversee the bottled water industry. [110] The industry suffered a temporary setback in its growth as a result of the public scrutiny, but ultimately both it and FDA weathered the storm.

The 1996 Safe Drinking Water Act (SDWA) amendments modified the FFDCA to provide that, by operation of law, if FDA does not adopt new EPA tap water rules for bottled water within 180 days, EPA standards will automatically serve as bottled water standards. [111] If FDA decides to adopt its own standards, they must be at least as stringent as EPA tap water standards, unless FDA finds that the contaminant does not occur at all in bottled water — in which case FDA can waive the requirement to have a bottled water standard. [112] The current legal status of bottled water standards for contaminants for which EPA had issued standards for tap water before the enactment of the 1996 SDWA amendments, but for which there were no FDA bottled water contaminant standards in effect, is being debated.

NRDC has carefully evaluated the regulatory framework now, more than seven years after the 1990-1991 storm of controversy swirled around the industry, and more than two years after the enactment of the SDWA amendments of 1996. We find that although, from 1993 to 1998, FDA adopted some of the additional bottled water standards it was obliged to adopt (and either decided not to adopt others or simply has not completed rule-making on them), little else has changed. [113]

Gaping holes remain in the regulatory fabric for bottled water, and FDA and state resources dedicated to bottled water protection and enforcement generally are thin to nonexistent. For example, FDA’s head bottled water regulator estimates that FDA has just one half of a person (full-time equivalent or FTE) per year dedicated to bottled water regulation. [114] Similarly, bottled water compliance is a low priority for FDA, so specific figures are not kept for resources dedicated to ensuring it meets standards; the compliance office estimated in 1998 that a likely total of “less than one” FDA staff person (FTE) is dedicated to bottled water compliance. [115]

The problems created by this lack of regulatory attention are addressed in detail below. “Voluntary compliance” and “industry self-regulation” seem to be the watchwords for the bottled water industry. While such an approach can be effective with motivated members of an industry, the discussions of contamination problems documented in previous chapters and in the Technical Report (print report only) make it clear that this approach leaves plenty of room for unscrupulous or careless members of the industry to provide substandard products, with little chance of being caught or subject to penalties.

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