Berkey Water Filters Sues the EPA

This entry was updated on 13th March 2024 by Philip Boerma. 

March 13, 2024, Berkey Files Additional Suit Against EPA in Federal Court

March 6, 2024 – Berkey International has filed a lawsuit against the Environmental Protection Agency (EPA) for misclassifying Berkey Water Filters as pesticides, and is seeking an injunction to lift the EPA’s Stop-Sale orders (SSURO) issued to NMCL dealers, vendors, and Berkey International’s manufacturing facility located in San Juan, Puerto Rico.

Berkey International supplies Berkey® Water Systems to New Millennium Concepts, Ltd (NMCL). NMCL is the sole wholesale distributor of Berkey® Water Systems globally. The Stop-Sale order (SSURO) placed on this facility by the EPA has tied up significant inventory and resources needed to meet the demand of Berkey® customers throughout the world and has created a shortage of Berkey® water systems and products globally.

This lawsuit is in addition to a third-party lawsuit filed in the North Texas District Court in August 2023 by NMCL and the James B. Shepherd Trust (JBST), which owns Berkey’s intellectual property. That lawsuit was dismissed for “lack of standing” as the Court determined that neither NMCL nor the JBST had been harmed by the EPA’s issuing of SSUROs to NMCL dealers and suppliers. In November 2023, an appeal was filed in the Fifth Circuit Court of Appeals because, in the view of the Plaintiffs, the Court failed in its requirement to accept all well-pleaded facts as true and view them in the light most favourable to the Plaintiff. While the Court of Appeals denied the motion for an immediate injunction, the lawsuit has not been dismissed and is still active in the Court of Appeals.

Berkey International has now filed an additional lawsuit against the EPA, which cannot be dismissed for “lack of standing”, as an SSURO (Stop-Sale order) was issued to Berkey International. While no one can ever predict what a federal court will do, we are hopeful for an injunction from the District Court Judge in Puerto Rico.

Though Judge Mark T. Pittman (TX) initially dismissed the case due to “lack of standing”, he stated, “In finding that standing is lacking in this case, the Court is in no way disparaging, or opining on, Plaintiffs’ claims. Indeed, if true, the claims are quite concerning.” By this statement, it appears Judge Pittman recognized a real dispute warranting judicial attention.

The new lawsuit can be found here: https://support.berkeywater.com/wp-content/uploads/2024/03/Berkey-Int-Lawsuit-Complaint-against-EPA-3-6-2024.pdf

January 30, 2024 Update on Berkey Court Case vs. EPA

As was previously announced in August 2023, New Millennium Concepts, Ltd., the brand owner of Berkey Water Systems, filed a lawsuit against the EPA for classifying Berkey Water Filters as pesticides and is seeking an injunction to lift the Stop-Sale order (SSURO) placed on Berkey International—which manufactures and supplies Berkey products to NMCL.

• In November, NMCL’s case was dismissed due to what the court felt was NMCL’s “lack of standing”. New Millennium Concepts then filed an appeal with the Fifth Circuit Court of Appeals because the court failed in its requirement to accept the Plaintiffs’ arguments and evidence.
• In January, NMCL’s request for an immediate temporary injunction to lift the EPA’s Stop-Sale order against Berkey International was denied by the Fifth Circuit Court of Appeals. NMCL filed a motion (Appellant’s Brief) rebutting the EPA’s arguments and disputing the District Court’s previous decision regarding NMCL’s lack of standing and how the court erred in dismissing the case.

The Bottom Line

• District Court Judge in the original case stated: “In finding that standing is lacking in this case, the Court is in no way disparaging, or opining on, Plaintiffs’ claims. Indeed, if true, the claims are quite concerning.” By this statement, it seems the Judge agrees there is a valid case which deserves action by the court to remedy if the Appellants’ standing could be substantiated.
• While the Court of Appeals has denied our initial appeal for an immediate injunction, the lawsuit was not dismissed and is still an active case being reviewed by the Fifth Circuit Court of Appeals.
• NMCL is continuing to conduct business as we have been doing, and hope the court will make a speedy decision that will enable us to resume manufacturing Berkey products. Rest assured that NMCL and its legal counsel are considering all other legal remedies to resolve the issue.

For more in-depth background of the lawsuit against the EPA please see: https://support.berkeywater.com/update-nmcl-court-case-vs-epa/

September 12, 2023,  Berkey Files Suit against the EPA

August 9, 2023 – New Millennium Concepts, Ltd. (“NMCL”) and the James B. Shepherd Trust, the brand owner of Berkey Water Systems, filed a lawsuit against the EPA (United States Environmental Protection Agency) this week seeking to stop its unjustified treatment and perceived persecution of Berkey Water Filters based on the EPA’s decision this year to treat Berkey Water Filters as though they are pesticides, rather than water filters.

For more than a quarter of a century, Berkey has provided water filters to the public, providing an effective, economical means of removing harmful contaminants from freshwater sources for consumers to have clean water at home or on the go.¹ In fact, an entire generation has grown up with a Berkey filter in their kitchen. If the EPA wants to regulate gravity-fed mechanical water filters, it has a process to follow, at the very least. Berkey’s filters have never caused any harm to anyone, and the removal of Berkey filters from the market inexorably means that Berkey owners will not be able to replace the filters in their systems and therefore, the demand will be met with untested knockoffs and counterfeit filters that claim to be replacements that provide the same benefits—when in fact they do not.²

The EPA’s decision to persecute the market leader may well cause actual damage to the American people who the EPA is supposed to be protecting. For example, on July 11, 2023, CBS recommended the Travel Berkey system, both in print and in their broadcast news, based upon the Environmental Working Group’s testing that found Travel Berkey systems removed toxic PFAS to below detectable limits³. On June 7, 2023, popular consumer health advocate Mike Adams recommended Big Berkey systems reporting that they removed an impressive 99.99% of radioactive cesium-137.⁴ However, EPA Region 8 is actively working to make these systems unavailable to the American people.

Berkey’s filters have never caused any harm to anyone, and the EPA’s arbitrary—and arguably irrational—new interpretation of its regulations would have a huge impact, directly threatening not only the jobs of  500+ employees globally, lost sales for Berkey distributors and retailers around the world (some of which sell only Berkey products—effectively putting them out of business) and also the well-being of the American people, the very consumers who the EPA is supposed to protect. Moreover, it would have the same impact on other outdoor water filter manufacturers, potentially putting them out of business as well.

The EPA has been regulating pesticides since 1947, mostly through the Federal Insecticide, Fungicide, and Rodenticide Act.⁵ FIFRA is exactly what it looks like – a law that seeks to regulate chemical pesticides, primarily for agricultural purposes. But the law distinguishes between actual pesticides, “substances or mixtures of substances intended for preventing, destroying, repelling, or mitigating any pest”, and “treated devices”, which use registered pesticides in their construction, e.g., seeds that are sold after being treated with a registered pesticide.

The EPA has never sought to force registration of mechanical-type water filters as pesticides until last year when the EPA decided to start regulating Berkey’s water filters without warning after more than two decades of indisputably safe manufacture and sale.

Though there was no notice or opportunity to discuss that issue, Berkey and its manufacturing arms agreed to a request from the EPA for Berkey filtration products to be identified as “treated devices” (which is a different classification than a pesticide or a pesticide device), because they incorporate silver (a registered pesticide) in their filter media (a common additive in water filters which does not leach into the water) that protects the filter from biological grow through, a common problem with water filters.

Berkey has not hidden from the EPA and has tried to comply with applicable laws and regulations regarding the manufacture and distribution of Berkey products. First, Berkey products were designated by the EPA as treated devices; the EPA then reinterpreted their rules and arbitrarily reclassified Berkey filters as a pesticide, issuing orders (without due process) preventing Berkey filters from being sold in some parts of the country by select Berkey dealers and vendors that received Stop-Sale Orders. This change in the rules is without notice or a shred of legal support. Berkey’s filters are not “substances or mixtures of substances intended for preventing, destroying, repelling, or mitigating any pest”, as FIFRA defines pesticides. Rather, they mechanically remove contaminants through a tortuous maze of micropores, absorption and ionic adsorption.⁶

A problem arises when a water filter system is classified as a registered pesticide because a whole host of time-consuming regulations and requirements go into play, including onerous labelling requirements that must be placed upon all packaging. The regulations that require labels to go on the packaging assert that the product is a hazardous material. Other required labels include hazard precautionary statements, environmental hazards statements, directions for use and storage, disposal statements and mandatory statements that ensure the proper use of the pesticide and to prevent the occurrence of unreasonable adverse effects on the environment, which is defined in FIFRA etc. Therefore, Berkey would be required to label its water filters with pesticide language that could be very disconcerting and frightening to its customers—especially when similar and competing products are not being held to the same standard or requirements. Moreover, pesticide registration is an expensive process that can take years to get EPA approval and in the meantime, Berkey products would not be available to the American public.

As an administrative body, the EPA does not make actual law; its authority is limited to creating rules, which enforce laws that are passed by the United States Congress. As it is making rules, it is obligated to give notice of new rules and take input from those who will be impacted, which in our case did not occur.

In part, the EPA is excusing its new regulations that now classify Berkey filters as a pesticide on a notice issued in 2007 regarding electrode-equipped ion-generating devices, asserting that the use of silver in Berkey filters makes the filters into ion-generating devices, even though the 2007 notice specifically excepts that interpretation.

NMCL, the family-owned trust that owns Berkey’s intellectual property and manufacturing authority, has employed Norred Law to sue in federal court and seeks an injunction to force the EPA to follow its rule-making process before enforcing new regulations.

The case has been filed in the Northern District of Texas, in cause 4:23-cv-00826, and is before Judge Pittman, who has ordered briefing on the requested injunction before the end of August. Read Mr Shepherd’s Declaration and the Original Complaint here: https://www.norredlaw.com/documents/01-Original-Complaint.pdf

[1] During their history, Black Berkey Elements have undergone what we believe to be the most rigorous testing of any other gravity-fed water filter elements. Berkey systems are simple and easy to use and require no electricity, costly installation, or tools, providing economical, long-lasting water filtration for just pennies a gallon.

[2] Black Berkey Elements are composed of a proprietary blend of multiple media types designed to work synergistically and target specific contaminants that far exceed the reduction capabilities of carbon block filters that are solely composed of activated carbon. See https://support.berkeywater.com/buyer-beware/

[3] https://www.cbsnews.com/colorado/video/which-water-filters-can-block-pfas/
https://www.cbsnews.com/amp/philadelphia/news/best-water-filters-for-pfas-chemicals-environmental-working-group-test/
https://support.berkeywater.com/travel-berkey-pfas-forever-chemical-news/
https://support.berkeywater.com/travel-berkey-forever-chemical-pfas-removal/

[4] https://www.naturalnews.com/2023-06-15-nuclear-fallout-lab-tested-water-filters-remove-cesium.html
https://support.berkeywater.com/big-berkey-cesium-radiological-reduction/

[5] FIFRA, 7 U.S.C. ch. 6 § 136.

[6] Mechanical filtering refers to a water filter construction where contaminants are caught and removed by a tortuous maze of micropores in the filter, absorption and ionic adsorption.
See https://support.berkeywater.com/how-do-black-berkey-elements-work/