The Singling Out of Berkey Water Filters

For more than two decades, Berkey Water Filters were sold across the world (California excepted – more on that below) without a hint of an issue.  The brand built up a good name and hundreds of thousands were sold to satisfied customers.

And then the Environmental Protection Agency stepped in.

For some reason, towards the tail end of 2022, the Agency decided that the water filter was actually a pesticide and thud: Berkey cannot be sold as currently labelled unless registered.

Why?  Why, after so long with Berkey making exactly zero changes to their product or advertising, did the EPA roll out the “it’s a pesticide” claim?

When asked, the EPA did not give an actual response beyond – paraphrasing – “it’s a pesticide and we regulate pesticides,” an answer that seems to be as circular as a Berkey water filter itself.

If anything, the agency seems to be relying on a 2007 rule concerning silver and ions 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, Berkey says.

Citing pending litigation, the EPA declined to comment on the matter. 

At issue, it seems, is the claim that Berkey filters eliminate viruses and pathogens. 

By saying this – and by incorporating physical silver, a listed pesticide, into the filter (though Berkey says not to filter water but to protect the filter itself) – the EPA claims it has the right to declare the whole thing a pesticide and went ahead and sent “cease and desist” letters to a number of filter re-sellers (that’s why it’s hard to find new filters right now.)

Here’s how – in their own words – the EPA decides if something is a “pesticide:”

8. Section 2(t) of FIFRA, (Federal Insecticide, Fungicide, and Rodenticide Act) 7 U.S.C. § 136(t), defines “pest,” in part, as any “form of terrestrial orbaquatic plant or animal life or virus, bacteria, or other microorganism (except viruses, bacteria, or other microorganisms on or in living man or other living animals) which the Administrator declares to be a pest under section 25(c)(1).”

9. Pursuant to the authority in section 25(c)(1) of FIFRA, 7 U.S.C. § 136w(c)(1), the Administrator established that “an organism is declared to be a pest under circumstances that make it deleterious to man or the environment, if it is: . . . [a]ny fungus, bacterium, virus, prion, or other microorganism, except for those on or in living man or other living animals and those on or in processed food or processed animal feed, beverages, drugs … and cosmetics . . . .” 40 C.F.R. § 152.5(d).

10. Section 2(h) of FIFRA, 7 U.S.C. § 136(u), defines “pesticide” as “(1) any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, (2) any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant, and (3) any nitrogen stabilizer….”

The problem with this EPA claim is that hundreds of other products make similar – if not exactly the same – claims and are not even remotely considered “pesticides” that the agency can regulate.

For example, look at the can of Lysol you have under the sink – right there on the label it says it kills “99.9% of viruses and bacteria…”

The EPA is not – so far as we know –  trying to reclassify Lysol as a pesticide.

Actually, real pesticides do need proper regulation, warnings, labels, and training to use.  But, again, the EPA is not requiring homeowners to take a four hour class to learn how to use a can of Lysol.

Nor, again as far as we know, is the EPA putting other products under the FIFRA – an actually important law that does protect people, crops, and animals – microscope.

Dr. Major Dhillon is the former Director of the Northwest Mosquito and Vector Control District in Corona, CA, the former president of the American Mosquito Control Association, and the former president of the International Society of Vector Ecologists (note: I served on the board of the NWMCVD.)

In other words, he knows pesticides and the vagaries of FIFRA. He also has a Berkey filter and swears by it.

“It is ridiculous to claim it’s a pesticide,” Dhillon said. “And this is why people are so tired of the regulatory state.”

Berkey (and it’s various corporate elements), of course,  have sued the EPA, calling its decision “arbitrary and arguably irrational.”

The suit has attracted the attention of Congress, with Rep. Matt Gaetz (R-FL) demanding that the EPA explain itself.

In a letter to the EPA, Gaetz said:  

The EPA has sought to justify this classification by noting that Berkey filters incorporate silver in their design, which is not on its own considered a pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) or under prior EPA guidance. Millions of water filters incorporate silver and, if regulated as pesticides, will be forced to label their products with aggressive warning signs and register their products as pesticides. 

This unprecedented attempt to, arbitrarily and without administrative process, put Berkey Water Systems out of business is an abuse of the EPA’s regulatory authority. In no stretch of the imagination is Berkey or any other water-filter brand that incorporates silver engaging in the business of manufacturing pesticides or manufacturing products that are treated with pesticides. The EPA’s ruthless and illogical interpretation of FIFRA is self-evidently without merit, and it must be reconciled with reality.

It is possible the entire affair was jumpstarted by covid; Berkey founder Jim Shepherd has said that it was his understanding the EPA was for some reason nervous filters were claiming to kill viruses so they decided to take a closer look at the issue.

Berkey Water Filters is suing the EPA after it began blocking millions of people from having access to clean water.

The EPA did this after they decided to suddenly change their interpretation of their own regulations.

Berkey Water Filters (NMCL) owner Jim Shepherd and… pic.twitter.com/z2fXimjaq4

— The Absolute Truth with @EmeraldRobinson (@AbsoluteWithE) September 7, 2023

And it’s not just the customers who are feeling the pinch.  Hundreds of workers have been laid off and Berkey retailers have been put in a bind.

Even as the case winds its way through the courts, one thing will not change:  Despite thousands of people like Dhillon having them in the state, Berkey does not sell filters in California.

Why?  Guess:

California’s “restrictive and litigious business environment requires businesses to navigate a labyrinth of complex and ever-changing regulations.”

The company continues:  

In the end, we have concluded that the additional taxes, certifications, red tape, registrations, along with the expense of defending against activist litigators, have created too costly a barrier. It has become too prohibitive and risky for Berkey^® to offer our systems to residents in the State of California.

But Dhillon plans to keep his as long as he can, as does Helen Evans of Torrance.

“I have used the Berkey water filtration system for many years. It is highly reliable and the quality of the water is excellent and refreshing,” said Evans. “I am not happy that this small business company is being targeted by the EPA.”

The Globe didn’t ask where they bought their Berkeys.