ENSURING CONSUMERS' RIGHT TO KNOW ABOUT BOTTLED WATER

Under the 1996 SDWA amendments, tap water suppliers are required to issue annual reports to all of their consumers, which many call "right-to-know reports." These reports inform consumers of all contaminants found in their tap water and the standards and health goals for those contaminants, information on the system's compliance with EPA rules, and details on their water source. ^[243]

After a pitched battle in which consumer and environmental groups fought to get a similar requirement adopted for bottled water, water bottlers were successful at killing a measure that would have required such right-to-know information from bottlers to be provided to consumers.

Right-to-Know Information for Tap Water, and Industry's Opposition to It for Bottled Water

The bottled water industry's opposition to a right-to-know requirement applying to bottled water is particularly disturbing in light of the industry's frequent citation of tap water quality problems as a rationale for switching to bottled water. It also is galling because of the industry's open admission that it has substantially benefited from labelling requirements for beverages such as diet soda, which have caused concern among many consumers about the ingredients in these drinks. The IBWA's primary spokeswoman recently noted, for example, that the recent burst in industry sales is linked in part to soda labels, which revealed to consumers just what they were drinking. "The more people realize what's in some of these drinks, the more they turn to water for what it doesn't have...." ^[244]

An internal communication from the IBWA executive director, obtained by NRDC, bragged about the industry's successful effort to keep consumers in the dark about the quality of the bottled water they are buying:

During the [House-Senate SDWA] conference some members wanted the same "right-to-know" provision enacted for bottled water. Although IBWA vociferously opposed any type of right-to-know for bottled water, we were informed by Congressional staff that it was a non-negotiable part of the discussion. Nevertheless, we then met with the House and Senate conference staff to communicate the industry's concerns to this type of notification and were successful in getting...a draft study [evaluating the feasibility of requiring bottled water right-to-know, rather than instituting a requirement] into the bill....This has been a great victory for the IBWA and the entire bottled water industry! ^[245]

Thus, if the bottler finds coliform bacteria, Cryptosporidium, cancer-causing solvents, or other contaminants in the water, but no violation of FDA's standards is triggered (either because there is no standard for the contaminant or because it was found at a level below the standard), there is no specific requirement in the FDA rules that such information be provided to consumers. ^[246]

Neither is the bottler required by FDA rules to disclose information about the source of the water, how well protected that source may be from contamination, or whether an assessment has been performed to determine its vulnerability to contamination. The bottler also has no obligation to disclose how and whether the water is treated.

Therefore, as a result of a successful vigorous lobbying campaign by the bottled water industry against right-to-know requirements for consumers of bottled water, the public likely will know little or nothing about what contaminants are in their bottled water. The FDA "feasibility study" to evaluate requiring right-to-know information for bottled water consumers, referred to by IBWA in the internal communication just quoted, was included in the SDWA essentially as a consolation prize to consumer and environmental groups. ^[247] It has not yet been issued, even in draft, although the law required FDA to publish a draft by February 1998. FDA issued a Federal Register notice late in 1997 asking for public comment on the feasibility of requiring some kind of disclosure for bottled water. ^[248] The study must be finalized by February 1999, ^[249] but FDA considers this study to be a low priority and has no firm date for its completion. ^[250]

The bottled water industry has continued to fight against applying right-to-know rules to its product. When FDA asked for comments on the feasibility of providing information to consumers about bottled water on labels, via the Internet or otherwise, they were inundated by complaints from IBWA and many individual bottlers. ^[251] IBWA opposed any right-to-know rules and charged that FDA had "exceeded its Congressional mandate" by even asking for comments on the type and contents of reports that might be provided to consumers about bottled water contaminants. ^[252] One bottler argued that "only the EPA can think up something as dopey as applying" right-to-know requirements to a "discretely-packaged, easily identified, pure food product" ^[253] like bottled water.

As discussed next, NRDC contends that the time has come for bottled water right-to-know labeling. If right-to-know requirements are good enough for the tap water industry, they're good enough for the bottled water industry, which is charging consumers hundreds of times more for their water per gallon and claiming that consumers should switch from "unreliable" tap water to safer bottled water.

The Need for Right-to-Know Requirements for Bottled Water

As President Bill Clinton stated in signing into law the 1996 Safe Drinking Water Act (SDWA) amendments, ^[254] the public has a right to know about what is in their drinking water, and whether it may pose a risk to their health. NRDC asserts that this right to know applies equally to bottled water as it does to tap water. The National Drinking Water Advisory Council (the congressionally chartered advisory body to EPA on federal drinking water policy) concurs. In its November 1998 recommendations, the council urged that EPA and FDA work together to ensure that information about bottled water be made available in as complete and readily accessible a form to bottled water consumers as tap water information is now available to tap water users. ^[255]

Millions of Americans rely upon bottled water as an alternative or substitute for tap water -- often as a result of the advertising campaigns of bottlers that tout the purity of their water and occasionally denigrate the quality of tap water. The 1996 SDWA amendments require consumers to be directly informed by their tap water supplier about all contaminants in their water (and the health goals and standards for those contaminants), their supplier's compliance with applicable standards, and the source of their water. ^[256]

NRDC strongly concludes that similar information must be made available to bottled water consumers on the label so they can make an intelligent choice as to what water to drink, considering their own and their family's health needs. For example, immunocompromised persons clearly could make use of label information on the microbiological quality of the water, its source, the treatment processes used, if any, and other relevant information. The label should include information about contaminants in the water found at levels above health goals and what health effects those contaminants have, the health goals and acceptable levels of those contaminants, bottler compliance, fluoride and sodium levels, key information on the source and treatment of the water, and a note on how consumers can get more information.

Only if the information is available on the label will consumers be able to make informed choices among the many brands of bottled water, or between bottled water and tap water. To put it bluntly, if, as the industry argues, bottled water is so pure and there is nothing for consumers to be concerned about, why not prove it with full disclosure on the label?

Methods for Conveying Information to Consumers

Several methods should be used to inform consumers about their bottled water, but the backbone of the effort must be label information.

1. Labels should be used to provide consumer information.
   
   

   To make information useful to consumers, it must be placed on the label. The label on bottled water is the most important means for communicating information, to consumers. The label should be of sufficient size and contain sufficient information presented in a simple, understandable way, to enable those most at risk from waterborne disease, such as parents of infants, the elderly, and the immunocompromised (or those wishing to reduce or eliminate their intake of carcinogenic or otherwise toxic chemicals) to make informed decisions when choosing a particular brand of water.
   
   

   Making information available in a usable and understandable form on the label is the most effective way to provide informed consumer choice. After all, bottlers devote an enormous effort and spend millions of dollars to create the wording and appearance of their labels and bottles, precisely because they know that often this is the factor that can most effectively influence consumer choice. The point at which most consumers evaluate products and make final purchasing decisions generally is at the store when the bottle is purchased.
   
   

   If the information on contaminants is not included on the bottles, it will not add much to consumer awareness or better-informed buying. This is precisely the reason that nutrition information is required by the Nutrition Labeling and Education Act of 1990 to be prominently placed on food labels.
   
   

   The alternative methods for providing information to consumers suggested by FDA in a recent Federal Register notice^[257] other than label disclosure -- such as including a phone number or address that the consumer can use to contact the bottler for more information -- are unlikely to result in any significant additional information reaching the vast majority of consumers. If the information is not available on the label when the consumer is making a purchase, it is far less likely to inform or influence consumer decision making.
   
   

   To make this point another way, how many bottlers would be satisfied with selling their water in plain, unadorned generic bottles and having their florid vignettes, eye-catching graphics, label language, and attractive bottle shapes available to consumers only upon request to a toll-free number? The answer is virtually none, because this would eliminate the impact of the information and advertising on consumer decision making.
   
   

   Mere reference to a toll-free number or address of the bottler also will be of little value, in part due to the pervasive consumer view (fueled by heavy industry advertising) that bottled water is extremely pure, and thus most consumers rationally may assume there is no reason to expend the time to learn what is contained in the bottled water they are about to purchase. If consumers have no reason to believe there may be contaminants in their water, they will have little or no motivation to make the extra effort necessary to contact their bottler.
   
   

   Therefore, we urge that bottled water labels should include the following information:
   
   

   • The level, expressed in whole numbers (as required by EPA tap water right-to-know rules), of any contaminant found in the water at a level in excess of a health goal,^[6a] plus the fluoride level (because of this element's asserted public-health benefits at low levels and, at high levels, its detrimental effects), sodium level (to assist those seeking to reduce their sodium intake for health reasons).
     
     
   • The health goal and allowable level for those contaminants, and fluoride and sodium, found in the water, in the same units.
     
     
   • A statement as to whether the bottler is in substantial compliance with state and federal regulations (based upon an annual certification sent to the state and FDA and not disagreed with in writing by either), and, if not, what violations occurred.
     
     
   • A one-sentence layperson-readable summary of the health effects associated with any contaminant found at a level in excess of a health goal (taken from model language written by FDA and EPA).
     
     
   • A simplified restatement of the EPA-CDC advice to immunocompromised consumers about the types of bottled water treatment necessary to avoid Cryptosporidium contamination, and whether the bottled water meets those criteria.
     
     
   • The specific source (e.g., "Houston public water system") and treatment (e.g., "reverse osmosis and ozonation") of the water.
     
     
   • An FDA toll-free number for consumers to obtain more information (or a referral to EPA's drinking water hot line);
     
     
   • The bottler's street address, phone number, and Web or e-mail address (if any), for further information.

2. Information should also be available on request and on the Internet.
   
   In addition to labeling, but not as a substitute for it, a more detailed consumer brochure should be available from bottlers. It should include a summary of all contaminants tested for and the range of levels found, detailed information on water treatment and on any source-water assessment and protection, and further information on the items noted in the first six bullets, above, as well as all other information that would be required to be provided by a public water system in public-notification and consumer-confidence reports required under section 1414(c) of the SDWA.
   
   Such brochures could be disseminated on the Internet (World Wide Web and e-mail response) and in response to written requests or telephone inquiries (e.g., via a menu-driven phone mail that provides automated mail or faxed responses). These methods of providing information could be a useful supplement to labeling but, for the reasons previously discussed, would not be an effective substitute for product labels.
   
   
3. Brochures and labels are needed for delivered water.
   
   Water that is delivered to homes or businesses should include the same information on a label on the carboy (large bottle), because many people consuming it (e.g., in an office, school, hospital, or other workplace setting) may not have access to a mailed or hand-delivered brochure. For example, an immunocompromised person visiting or working at such a location could benefit from being able to review that information even if a brochure has been misplaced or is no longer available.
   
   We do believe, however, that mailing or delivering a detailed water report to the person responsible for the bill would also be advisable, as that person has the most influence over which water to purchase and may make important use of the information.

Feasibility of Appropriate Methods

It is quite clear that labeling of bottled water to include the information previously noted is feasible. Labels on currently sold bottled water have ample space available to include such information, and previous industry experience with nutrition-label information has shown the ability to include more information on such labels.

We are aware that there may be concerns expressed by the industry about the feasibility of including such information on the labels of bottled water due to space limitations, costs, or other problems. However, several other factors demonstrate the feasibility of such labeling:

• Our informal survey of the bottles of water commonly sold in major local stores indicates that such information clearly could fit on the label. On all bottles now on the market that we have seen, there is ample free space for additional label information. In the vast majority of cases, substantially less than half of the bottle's surface area that could be used to provide written information is used to provide this under current labeling practices. For every brand we have seen, at least 50 percent of the bottle's surface area, and generally a far greater percentage of the surface area (our estimate is that on average, less than 25 percent of the surface area of the average bottle of water is covered with label information), is available for additional label information.
  
  
• In unusual cases in which for some reason labels could not be immediately changed, temporary stickers could be used, or bottlers could use a bottle neck hanger (as is currently used by Apollinaris), so long as the sticker or hanger contains all required information and is required to remain on the bottle until sale.
  
  
• If industry assertions of the general purity of bottled water are correct, there should be very few contaminants found at levels above health goals that would need to be noted on the label, so little additional space would be required for such information, or for health-effects information regarding such contaminants. For example, the International Bottled Water Association says flatly that there are "no" harmful chemicals in bottled water. If so, little or no label space will be required for information on contaminants.
  
  
• Many bottlers already include substantial information (albeit generally without the important contextual explanation consumers need to understand the data) on the levels of total dissolved solids, the minerals found in their water, and the levels of those minerals in their water. For example, detailed information on the levels of total dissolved solids, as well as levels of sodium, potassium, calcium, magnesium, chlorides, sulfate, nitrates, bicarbonate, silica, and pH are included on the labels for Evian, Naya, Strathmore Mineral Water, Vittel, Volvic, Spa, Aqua Cool, and many other waters. Other bottlers include selected water-quality information on their bottle labels, for example: S. Pellegrino (total-dissolved-solid, sodium, and calcium levels); Fountainhead (lead, arsenic, sodium, and nitrate levels); Gerber Baby Water (fluoride, arsenic, lead, sodium, and nitrate levels); Quibell (calcium, magnesium, sodium, pH, and total-dissolved-solid levels); Apollinaris (magnesium, sodium, and total-dissolved-solid level); Vals (sodium and total-dissolved-solids); and Solé (total-dissolved-solids, sodium, and pH levels)
  
  
• In Europe, mineral water already must include such total-dissolved-solids and mineral-composition information. It is therefore clearly possible to identify on the label the levels of what are hoped to be at most a small number of contaminants found at levels over health goals.
  
  
• Some states already require information on the source of the water (e.g., Massachusetts) and on arsenic and lead levels (e.g., Vermont), etc., on the label, and many bottlers already include such information on their labels, so a national requirement for such information would not add to the burden of many bottlers.
  
  
• Many bottlers making claims about low- or no-sodium content include nutritional information already, information that rivals or exceeds the space requirements necessary to include the information previously noted.
  
  
• The costs of relabeling will be trivial when compared with the profit margin in the industry. The food-nutrition label has not been a significant burden on the food industry, and profit margins in this industry are greater. For example, a bottler selling water taken from a public water supply and then filtered is likely to sell that water for hundreds of times more per liter than the bottler paid the water supply for the water, and will have spent a small amount per gallon for treatment.
  
  
• If public water suppliers, who are charging far less per gallon of water, can supply such information to consumers, it is imperative and feasible for bottlers to do so as well.

Conclusions Regarding Right-to-Know Information for Bottled Water

Consumers have a right to know about what is in their drinking water and whether it poses any risk to their health. For this reason, water bottlers should be required to disclose information about bottled water contaminants, bottler compliance, water treatment, the source of the water, and health issues on the label. Without such label disclosure, informed consumer decision making about whether to purchase bottled water will be seriously undermined.

Chapter Notes

6a. The term "health goal" refers to an EPA Maximum Contaminant Level Goal (MCLG), see SDWA §1412(b)(4)(A)), if any, or, if there is no MCLG, the lowest EPA Health Advisory Level (HAL), see SDWA § 1412(b)(1)(F)), or if there is no MCLG or HAL, the lowest EPA human health-based water quality criteria for that contaminant (see Clean Water Act §§ 303-304). For contaminants with an MCL but no MCLG, it is particularly important for the health-based water quality criteria to be noted on the label (until an MCLG is published), since such standards (like arsenic) have not been revised since 1942 and thus do not reflect up-to-date science.

Report Notes

243. SDWA § 1414(c)(4).

244. Constance Hayes, "Now, Liquid Gold Comes in Bottles," The New York Times, p. D1 (January 20, 1998).

245. Sylvia Swanson, IBWA Executive Director, "Safe Drinking Water Act Becomes Law," reprinted in Aqua News: Northeast Bottled Water Association, p. 5 (Summer 1996).

246. While theoretically bottlers are obliged to include on the label a statement that their product "Contains Excessive Chemical Substances [or Bacteria]" if it violates an FDA standard, the bottler's obligations to disclose under the FDA rules about end there.

247. SDWA Amendments of 1996, Pub. L. No. 104-182, § 114(b).

248. 62 Fed. Reg. 60721 (November 12, 1997).

249. SDWA Amendments of 1996, Pub. L. No. 104-182, § 114(b).

250. Personal Communication with Henry Kim, FDA Center for Food Safety and Applied Nutrition, November 20, 1998.

251. See, e.g.Sylvia Swanson, IBWA Comments on Bottled Water Study: Feasibility of Informing Consumers of the Contents of Bottled Water, November 12, 1997 (comments dated December 12, 1997); Kim Jeffrey, Perrier Group of America, Comments on Bottled Water Study: Feasibility of Informing Consumers of the Contents of Bottled Water, November 12, 1997 (comments dated December 12, 1997); Jack West, Puro Water Group, Comments on Bottled Water Study: Feasibility of Informing Consumers of the Contents of Bottled Water, November 12, 1997, (comments dated December 11, 1997) [FDA Docket 97N-0436].

252. Sylvia Swanson, IBWA Comments on Bottled Water Study: Feasibility of Informing Consumers of the Contents of Bottled Water, November 12, 1997 (comments dated December 12, 1997).

253. Jack West, Puro Water Group, Comments on Bottled Water Study: Feasibility of Informing Consumers of the Contents of Bottled Water, November 12, 1997 (comments dated December 11, 1997) [FDA Docket 97N-0436].

254. Pub. L. No. 104-182 (August 6, 1996).

255. Recommendations of the National Drinking Water Advisory Council, November 1998.

256. SDWA § 1414(c).

257. 62 Fed. Reg. 60721 (November 12, 1997)