Berkey Water Filters vs. the EPA

I’m not going to make any friends with this one, but we need to talk about the Berkey water filter lawsuit against the EPA and why regulation is a GOOD thing. I led a 20 year career in Federal Regulation and contract law, and have been researching toxicity in health and wellness for over a decade. These type of nerdy deep dives are my jam!

PART 1: What is even happening?

We need to start by understanding the law that the Berkey is accused of violating, Federal Insecticide Fungicide and Rodenticide Act (FIFRA), which aims to define pesticides for safe regulation. The EPA asserts that Berkey needed to register the filter accordingly because they indicated that it contained silver with the intended purpose of “preventing, destroying, repelling.”

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) is the Federal statute that governs the registration, distribution, sale, and use of pesticides in the United States. With certain exceptions, a pesticide is any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, or intended for use as a plant regulator, defoliant, or desiccant, or desiccant, or any nitrogen stabilizer.

And in fact, in Berkey’s own lawsuit they admit the EPA told them to do that in 2022 based on the 2007 requirement, then go on to acknowledge understanding of the law requiring licenses. And again, specifying the 2007 law included silver as a pesticide.

There’s a lot more going on in the 49 page legal document, but as a consumer here are my questions:

1. Why did Berkey know this, but Berkey didn’t follow regulatory requirements until a stop sell in Dec 2023? In fact the EPA conducted an inspection in April 2022 followed by a compliance call in May to inform them.
2. How does this affect consumers?

Whether you’re of the “done” mindset like Water Matters, who stopped selling Berkey after their own concerns, as did California and Iowa who have banned them, or are just generally unsure – one thing seems true for all: consumers want transparency, especially around health and safety claims.

PART 2: Why?

Why have California and Iowa banned Berkey’s indoor water systems? Because they’re not certified by 3rd parties. From Berkey’s website:

The state of California has established regulations and procedures for the sale of indoor water systems. Under these regulations, the state of California requires that any water treatment system that is sold in the state first be certified by an independent, third-party testing agency, such as NSF, before the system can be considered eligible for sale in California…

The tests we have conducted are much more rigorous than those required by NSF for the certifications mandated by the state of California. Our purifiers have been rigorously tested by third-party independent accredited labs far surpassing the above standard of taste, odor and chlorine reduction. For example, our systems have been tested for the removal of hundreds of contaminants including heavy metals, pesticides, herbicides, pharmaceuticals, pathogenic bacteria and viruses. These test results are published and available to all our consumers on our website as well as published in our printed literature. In addition, there has also been other highly publicized and notable testing of our purifiers against other so-called similar water filtration systems which clearly back up our third-party testing. Although our extensive testing is sufficient for 49 states in the US, it is currently not acceptable for residents of the state California.

If this is true, why not submit to NSF certification, if it will pass easily?

Once NSF certification has been obtained, the state of California additionally requires that companies pay high costs to obtain and maintain certification with the state of California.

In the end, we have concluded that the additional taxes, certifications and red tape have created too large of a barrier for our firm to offer our systems in the state of California.

California is the world’s 4th largest word economy. And are highly health-conscious. Likely, California residents represents the largest economic sector for Berkey, so this doesn’t seem right to me.

Something else seems off

Further research gave me a big surprise. I found that Berkey makes claims about product performance which cannot be verified by 3rd party testing.

The Water Filter Guru‘s third-party lab tests surprised me by revealing that tap water results showed an INCREASED risk from aluminum after using the Berkey. It also didn’t meet their own claims for reductions, like flouride.

Many other sources had similar results. The New York Times shared inconsistent lab results which also do not mirror all of Berkey’s claims.

In my own opinion, I concluded that if Berkey sought the standard NSF/ANSI certification and agreed to regulatory licensure, they would face accountability for claims which sources indicate are inconsistent.

PART 3: How (regulation benefits you)

None of the sources I read found Berkey’s claim of 3000 gallon standards to be valid. Instead, many discovered that achieving safe water required flushing hundreds of gallons before use. And the filters failed to meet those standards after 1100 gallons. An example from NYT WireCutter shows how far off Berkey is from NSF/ANDI standards.

What are NSF standards?

Fun fact: I once worked in a building that shared space with the National Science Foundation. Among many things this trusted non-governmental body creates are standards in residential water treatment systems. Their mission is to align public health with corporate social responsibility. The NSF is the authority for many health standards, testing, certification, water, health products, and the environment. Essentially, they’re a non-profit that’s looking out for you.

No federal regulations exist for residential water treatment filters, purifiers and reverse osmosis systems. So NSF experts developed voluntary standards and protocols to establish minimum safety and performance requirements for treating home drinking water.

Check out Instagram reel explainer: Part 1 here, Part 2 here, Part 3 here!

Recommendations

As a consumer, you have the option to replace your filter with a ceramic version that is NSF certified, like these.

You can search “NSF certified” on many sites online.

Or, transition to a reverse osmosis system, a topic discussed on my podcast, The Whole View ep 406.

Last but not least, check your local water sources. My county discloses it’s annual water testing results, so that you can make informed choices about any violations.