Guest Opinion

A couple of weeks ago, I wrote about the Safe Drinking Water Act and how we may still get water that is below acceptable standards—because it is better than no water at all. That is a summary of the policy for the small public water systems regulatory environment.

So let’s say you take matters into your own hands and buy a water filter for your home. Water filter systems that filter all water coming into your home usually use filtration, disinfection, and ion exchange and result in nice, clear water. You can buy filtered, purified, or distilled water by the gallon at your supermarket, but we have recently learned all bottled water is contaminated with microplastic particles. We can also choose a pitcher with a filter that claims to filter a list of contaminants. Brita, a well-known water filter company, is certified to filter these contaminants, including:

  • Chlorine and chloramine
  • Lead (Brita Elite only)
  • PFAS (Brita Elite only)
  • Microplastics (Brita Elite only)

So what’s the harm in contaminated drinking water?

From the beginning of time, humans were in search of clean drinking water, but population density was low enough to prevent contamination beyond the usual parasites. When boiling water became a tool for safe drinking water, around the fifteenth century B.C., less illness from drinking water resulted.

The CDC estimates that at least 1.1 million people in the United States get sick every year from germs in drinking water—about 1 in every 300 people. Legionella is the leading cause of outbreak-linked illness, followed by other pathogens like Pseudomonas, norovirus, Giardia, and Campylobacter. The Brita pitcher filter does not remove microbes, bacteria, or amoebas.

Nearly one-third of Americans are exposed to some unregulated contaminant in drinking water, with 27% of public water systems having chemicals linked to health issues.

Who regulates water filters—EPA? FDA? CPSC?

None of them.

The Environmental Protection Agency (EPA) does not regulate home water filters. It regulates water up to the point of entry into a home (and at the exit point as it leaves the home). The Food and Drug Administration (FDA) only regulates devices that make medical claims, not claims of purification. So it would seem the Consumer Product Safety Commission (CPSC) would be the obvious choice. The answer is again no. It is a common misperception that the CPSC approves consumer products before they can be marketed, but that is not its mission. It can create standards, although this is often a third-party role, but it is best known for receiving complaints and negotiating recalls of products found to be unsafe. In 1975, the CPSC was contacted by a company proposing to produce a water filter and asked whether the agency would regulate it. The CPSC outlined how it would not regulate it and pointed out there were no existing regulations that would require oversight by any agency.

So when Brita claims to be “certified”—who is doing the certification?

Third-party organizations develop standards for the removal of contaminants from water and then certify those filters for having met those standards. Although there is no government regulation, these certification organizations create a standard of reliability for products. The most common third-party certification for a product category is probably “UL-approved” electrical products, meaning they meet third-party standards of safety. (I have observed a frequent lack of this certification on many electrical products I have purchased through Amazon.com. Having come to expect some assurance of safety from this certification, this reminds me that it is a voluntary, third-party standard.)

The NSF (National Sanitation Foundation) sets the main standards—such as NSF/ANSI 42 (taste, chlorine, particulates), 53 (health-related contaminants like lead and cysts), 58 (reverse osmosis), and 401 (emerging contaminants).
The WQA (Water Quality Association) also certifies filters against those same NSF/ANSI standards.

Here are the three certifying organizations for water filters:

For example, a Brita Elite filter is certified by the National Sanitation Foundation (NSF), working with the American National Standards Institute (ANSI), for the removal of lead. The standard certified here is NSF/ANSI Standard 53 for lead reduction.

Only if a water filter company makes claims that are fraudulent or misleading would an agency intervene. In cases of fraudulent or false advertising claims, the Federal Trade Commission (FTC) would have the authority to pursue enforcement.

I will see you in court, Brita

The civil court system is also available to pursue harms resulting from products. A consumer sued Brita for the cost of the $15 pitcher filter he purchased, believing it would remove contaminants to a detectable level. Because technology has increasingly lowered detectable thresholds, the FDA was forced to rethink its “zero” tolerance of carcinogens requirement set in the FDCA, known as the Delaney Clause.

In Brown v. The Brita Products Company, the named consumer, Nicholas Brown, claimed that he believed the Brita filter would remove all detectable contaminants and that he would not have spent $15 on the filter had he known it only reduced contaminants. The Ninth Circuit, applying California consumer protection law, concluded that a person could not reasonably expect a $15 water filter to remove all contaminants harmful to health. The U.S. Court of Appeals for the Ninth Circuit affirmed the U.S. District Court’s decision to dismiss the case without leave to amend.

Final thoughts

Knowledge is the best defense against contaminated water. Knowing what your water filter will and will not do—and that there is no federal agency providing oversight beyond Safe Drinking Water Act standards or policing fraudulent advertising claims—is essential. It is ironic that, with all of the federal budget designed to protect us from harm, filtering contaminants from water is not one of them. From boiling water to Brita filters, we are still on that quest for safe drinking water.

To read more articles by Professor Sutton go to:  https://profvictoria.substack.com/ 

Professor Victoria Sutton (Lumbee) is a law professor on the faculty of Texas Tech University. In 2005, Sutton became a founding member of the National Congress of American Indians, Policy Advisory Board to the NCAI Policy Center, positioning the Native American community to act and lead on policy issues affecting Indigenous communities in the United States.