PRESS RELEASE

BERKEY WATER FILTERS SUES THE EPA

August 9, 2023

New Millennium Concepts, Ltd. (“NMCL”) and the James B. Shepherd Trust — the brand owner of Berkey Water Systems — have filed a lawsuit against the United States Environmental Protection Agency (EPA), seeking to halt what they describe as unjustified treatment and targeted enforcement against Berkey Water Filters. The dispute centers on the EPA’s recent decision to classify Berkey’s gravity-fed water filters as “pesticides,” rather than as mechanical water filters.

For more than 25 years, Berkey has supplied consumers with reliable, economical water filtration systems designed to remove harmful contaminants from freshwater sources, both at home and on the go. An entire generation has grown up with a Berkey in their kitchen. According to NMCL, the EPA’s sudden reclassification threatens to remove these filters from the market entirely, leaving existing Berkey owners unable to obtain replacement filters. This gap, they argue, will inevitably be filled by untested knockoffs and counterfeit products that falsely claim equivalent performance.

The company warns that the EPA’s actions could harm the very people the agency is meant to protect. In recent months, independent media and consumer advocates have recommended Berkey systems based on strong third-party test results. On July 11, 2023, CBS highlighted the Travel Berkey for its ability to remove PFAS chemicals to below detectable limits. On June 7, 2023, consumer health advocate Mike Adams reported that the Big Berkey removed 99.99% of radioactive cesium-137 in testing. Despite this, EPA Region 8 is actively working to restrict Berkey systems from the U.S. market.

NMCL states that Berkey filters have never caused harm to consumers in more than two decades of use. The EPA’s revised interpretation of its regulations could directly threaten the jobs of more than 500 employees worldwide, cut off sales for distributors and retailers (some of which exclusively sell Berkey products), and negatively impact millions of consumers who rely on these systems. The company further notes that similar actions could jeopardize other outdoor and gravity-fed water filter manufacturers as well.

The EPA has regulated pesticides since 1947 under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The law distinguishes between actual pesticides — substances intended to prevent or destroy pests — and “treated devices,” products constructed with a registered pesticide incorporated into their materials, such as seeds coated with protective agents. According to NMCL, the EPA has never attempted to regulate mechanical water filters as pesticides until beginning last year.

To address initial concerns, Berkey agreed to identify its products as “treated devices” because its filter media incorporates silver, a registered antimicrobial agent commonly used in water filters to prevent biological growth inside the element. The silver does not leach into filtered water. However, NMCL reports that the EPA later changed its interpretation and arbitrarily reclassified Berkey filters as pesticides, issuing Stop-Sale Orders to select Berkey dealers without due process.

Reclassifying mechanical water filters as pesticides triggers extensive regulatory burdens, including hazard-based labeling requirements that could alarm consumers, despite Berkey filters being strictly mechanical devices. Pesticide registration is also costly, taking years to complete, which would make Berkey products unavailable to the public during the process.

As a regulatory agency, the EPA does not create laws and must follow established rule-making procedures — including public notice and comment — before imposing new rules. NMCL argues that no such process occurred. The EPA has cited a 2007 notice concerning electrode-equipped ion-generating devices to justify its position, but that notice expressly excludes Berkey’s type of product, according to the company.

NMCL and the James B. Shepherd Trust have retained Norred Law and filed suit in the Northern District of Texas (Case 4:23-cv-00826). The case is before Judge Pittman, who has ordered briefing on the requested injunction before the end of August.

Mr. Shepherd’s Declaration and the Original Complaint can be read here:
https://www.norredlaw.com/documents/01-Original-Complaint.pdf

References

[1] Black Berkey Elements have undergone extensive independent testing and are designed to provide long-lasting, economical filtration without electricity or installation.

[2] Black Berkey Elements use a proprietary blend of filtration media that surpass the contaminant-reduction capabilities of standard carbon block filters.
Buyer beware: https://support.berkeywater.com/buyer-beware/

[3] Coverage on PFAS performance:
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] Cesium-137 test coverage:
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 filtration explanation:
https://support.berkeywater.com/how-do-black-berkey-elements-work/