Why you should choose tap water the next time: The gaps in bottled water regulation

Americans spend nearly 300 times more on bottled water than tap water per gallon, amounting to billions of dollars each year.[1] So, why are Americans spending so much money on something they can get for so much less?

One reason for the trend toward choosing bottled water over tap is public opinion. Many believe bottled water is purer and safer, but, despite this common misconception, bottled water is actually not cleaner and is less regulated.[2] Tap water is heavily regulated by the Environmental Protection Agency (EPA) under the Safe Drinking Water Act (SDWA), which gives EPA the authority to establish national primary and secondary drinking water regulations.[3] Primary regulations are legally enforceable standards protecting water quality by limiting contaminant levels; secondary regulations are non-enforceable guidelines for taste, odor, and color.[4] Public water systems are also required to issue public reports about what is in their water, a means of ensuring compliance with regulations.[5]

On the other hand, bottled water is regulated as a “food”by the Food and Drug Administration (FDA).[6] Bottled water is not regulated by SDWA standards and “the safety and consumer protections are often less stringent than comparable EPA protections for tap water.”[7] Under the Federal Food, Drug, and Cosmetic Act (FFDCA), FDA is supposed to set all of its contaminant levels and treatments to the standards set by EPA.[8]Title 21 of the Code of Federal Regulations sets the standards for bottled water; it regulates much of the process, including the quality of the water, the manufacturing process, and the labeling requirements.[9]

There are some gaping holes in the bottled water regulatory regime. According to the Natural Resources Defense Council, up to 70 percent of bottled water is unregulated by FDA because it never crosses state lines for sale.[10 ]FDA only has authority to regulate bottled water that is sold in interstate commerce, the rest is regulated by the states and by the industry itself.[11]Furthermore, bottled water plants are only inspected every two to three years, and according to FDA, “bottled water plants generally are assigned low priority for inspection,”unless they have had violations in the past.[12 ]FDA only devotes 2.6 full time-equivalent positions each year to inspecting bottled water.[13]

Even though FDA’s standards generally meet those of EPA, there are some exceptions. FDA also has a much weaker authority to enforce its quality standards.[14] FFDCA does not require test results to be reported, even if the tests show violations; EPA on the other hand requires public water systems to report violations within 24 hours.[15] This means that quality issues with bottled water are going to be reported much less often than issues with tap. Unlike public systems, bottled water facilities can self-test their product and are not required to use certified laboratories to conduct their tests.[16 ]Under SDWA, the operators of public water systems also must be certified to provide adequate drinking water, while bottled water facilities operators do not.[17] FDA increasingly relies on states to inspect and enforce regulations, but, unlike EPA, FDA does not have primacy over states on setting bottled water regulation.[18]

Today, FDA is working to fix some of these gaps. In 2009, FDA published a final rule in the Federal Registrar (74 FR 25664) to require bottled water manufactures to test their water for E. Coli.[19] Little else has been done to change regulations at the federal level. These large gaps in regulation persist because FDA lacks statutory authority and resources (both funds and staff) to fill in these regulation gaps.[20 ]

Secondly, Americans buy bottled water because of where they believe it comes from. In fact, in 2009, nearly 50% of all bottled water came from tap water sources, which went unnoticed because companies are not required to include the water source on the label.[21 ]Further, FDA has not mandated definitions for phrases like, “pure, purest, pristine, premium, mountain water, and clean;”these terms are merely advertising tools, which do not relate to the cleanliness or safety of the water.[22] There also are no regulations on the images that appear on bottled water labels.[23] Just because the bottle shows an image of a mountain, does not mean the water has to come from a water source in the mountains. In reality, it could just be ground water.

While consumers believe buying bottled water rather than drinking tap water is worth the cost, the administrative gaps in FDA regulation show that is not always the case.

 

Sarah Ladin is a General Member on MJEAL. She can be reached at sladin@umich.edu.

   


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

  1. Matthew Boesler, Bottled Water Costs 2000 Times as Much as Tap Water, Business Insider (July 12, 2013), http://www.businessinsider.com/bottled-water-costs-2000x-more-than-tap-2013-7.
  2. Sean D. Raj. Bottled Water: How Safe is it?, in 77 Water Environment Research, 3013 (2005).
  3. U.s. Gov’t Accountability Office, GAO-09-610, Bottled Water: FDA Safety and Consumer Protections are Often Less Stringent than Comparable EPA Protections for Tap Water (2009).
  4. Id.
  5. Id.
  6. Lauren M. Posnick & Henry Kim, Bottled Water Regulation and the FDA, in Food Safety Magazine (2002), reprinted in Ask The Regulators (Catherine Bailey, ed., 2002).
  7. GAO-09-610, supra note 3
  8. Id.
  9. Posnick & Kim, supra note 4
  10. Erik D. Olsen, Bottled Water: Pure Drink or Pure Hype? (1999), available at http://www.nrdc.org/water/drinking/bw/bwinx.asp.
  11. Id.
  12. Regulation of Bottled Water: Hearing Before theSubcomm. on Oversight and Investigations of the H.Comm. on Energy and Commerce (2009) (statement of Joshua M. Sharfstein, Food and Drug Administration).
  13. GAO-09-610, supra note 3
  14. Id.
  15. Id.
  16. Id.
  17. Id.
  18. Id.
  19. Sharfstein, Joshua M., supra note 10
  20. GAO-09-610, supra note 3
  21. Bottled Water: Illusions of Purity, http://www.foodandwaterwatch.org/water/bottled/bottled-water-illusions-of-purity/ (last visited Dec. 3, 2014).
  22. Peter H. Gleick, The Myth and Reality of Bottled Water, in The World’s Water 2004-2005: The biennial report on freshwater resources 17, 31 (Island Press Publishing 2004).
  23. Id.

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