Berkey Water Filter Maker sues EPA for labeling its products as ‘pesticides’.
Berkey Water Filter Manufacturer Sues EPA Over False Claims
Berkey water filter manufacturer New Millennium Concepts is taking legal action against the U.S. Environmental Protection Agency (EPA) for labeling its filters as “pesticides.” The EPA’s stop-sales order in May has caused significant financial losses for the Texas-based company. In response, New Millennium Concepts has filed a lawsuit, arguing that the EPA’s actions are unjustified persecution.
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“They’re going after the vendors. It’s really a way of starving Berkey in the market so we have nothing available—that’s the problem,” the company’s attorney, Warren Norred, told The Epoch Times.
“The sad reality is [government] control is its own reward. That’s where we are.”
The 49-page complaint argues that Berkey has done business in the United States without incident or regulation by the EPA for 25 years.
In 2022, the agency demanded the company register its mechanical filter as a “pesticide device,” and then recently as a “pesticide,” without compliance with Administrative Procedures Act (APA) guidelines, the lawsuit argues.
‘EPA Fail’
“The EPA’s failure to operate using plain language and follow APA guidelines has caused plaintiffs devastating damage,” the suit claims.
“What the EPA is doing is attacking the vendors to Berkey products,” attorney Norred said. “They’re interfering in the supply chain.”
The EPA has been regulating pesticides since 1947 under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). However, the lawsuit argues that Berkey filters do not use chemical pesticides to treat water—it’s purification process is entirely mechanical.
“FIFRA is exactly what it looks like—a law that seeks to regulate chemical pesticides,” according to the Norred Law website. “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.”
In February, the EPA issued a compliance advisory announcing changes in regulations governing the production, distribution, and sale of “pesticide devices.”
“There has been a significant increase in the number of devices being distributed or sold in the United States,” the advisory stated.
“EPA has found substantial non-compliance with FIFRA in the device and pesticide marketplace. Examples of non-compliance include unregistered pesticides claiming to be devices, devices bearing false and misleading statements, and devices being sold and distributed that were not produced in an EPA registered establishment.”
The EPA said examples of pesticide devices include water or air filters, ultraviolet light systems, ozone generators, and sound generators.
“If a device incorporates a substance or mixture of substances to perform its intended pesticidal purpose, then it is considered a pesticide, not a device, and would require registration under FIFRA Section 3.”
Silver-Protected Filters
New Millennium Concepts agreed to an EPA condition designating Berkey water filters as treated devices, because they use silver to protect the filters that remove pathogens by means of a “tortuous maze of micropores.”
The use of the anti-viral silver in Berkey filters has been found to trap more than 99 percent of COVID-19 strains, Mr. Norred said.
“Silver is often used in pesticides for pesticidal purposes. The EPA has latched on to the use of silver to protect the filter, and said you’re using silver and you are making pesticidal claims—poof, you’re a pesticide.”
“We do use a registered pesticide that has silver in it. So the filters are technically a treated article because there is a pesticide Berkey uses to protect its filters. But that pesticide does not have any pesticidal purpose for the water. It just protects and lengthens the lifetime of the filter,” Mr. Norred added.
Not Enough
But the company agreeing to brand its Berkey water filters as treated devices “wasn’t enough,” the legal website added.
‘The EPA recently decided that the filters are actual pesticides, again without notice or warning, issued orders preventing Berkey filters from sale in some parts of the country, and preventing their export.”
“If the EPA wants to regulate gravity-fed mechanical water filters, it has a process to follow, at the very least. Berkey’s water filters have never caused any harm to anyone, and the removal of Berkey filters from the market inexorably means that the demand will be met with untested knockoff and counterfeit filters.”
The lawsuit regards the EPA’s actions as “arbitrary, capricious, and an abuse of discretion,” and asks the court for an injunction to block the stop-sales order.
New Millennium Concepts partner James Shepherd told The Epoch Times that the EPA crackdown on Berkey water filters is costing the company $2,500 in daily storage costs—$1 million yearly, by his estimates.
The EPA sent stop-sale orders to at least half a dozen vendors, which means New Millennium Concepts can’t move its products to many of its customers, he said.
“It appears to me what they want me to do is go bankrupt. Basically, when they shut down our dealers, we started working with the EPA,” Mr. Shepherd said.
“No company can sit there and continue with their expenses with no income. You can’t walk into a company, give it a bad name, and then two or three years later say now it’s a pesticide.”
The EPA declined a request for comment from The Epoch Times regarding the company’s lawsuit.
“Because this is pending litigation, EPA has no further information to add,” said Office of Public Affairs spokeswoman Shayla R. Powell.
‘Biggest Loser’
Mr. Shepherd said the biggest loser in his company’s legal battle with the EPA are the consumers of Berkey products who desire a non-chemical method of purifying drinking water.
New Millennium Concepts recently issued a statement to its customers assuring it was working to resolve product availability issues.
“Due to an EPA stop sale order, Black Berkey Filter Elements are currently unavailable. As a result, all systems which include Black Berkey Filter Elements (Travel Berkey, Big Berkey, etc.) are unavailable as well. Products without Black Berkey Filter Elements (such as Fluoride Filters, shower filters and accessories) remain available on our website.
“We understand the importance of access to reliable, filtered water and the peace of mind that your Berkey products provide. Rest assured the entire Berkey Filters Team is dedicating all resources and investing heavily in resolving this product availability issue as soon as possible.”
Mr. Shepherd said the EPA gave the company three choices: register Berkey devices as pesticides, a lengthy process that could mean “death” to the company; remove all previous marketing language around the world—a challenging, if not impossible task; or create a new water filter that does not use the Berkey name or patented technology.
Option three would mean introducing a new product with no brand recognition in a highly competitive market, he said.
“We think something rogue is going on. I don’t know if I’m dealing with a rogue organization,” Mr. Shepherd said.
“We still do not know to this day what is the specific issue that makes [Berkey filters] a pesticide. They will not tell us.”
What are the potential implications of the outcome of this lawsuit on other manufacturers and industries facing regulatory challenges
Ber of manufacturers producing products that claim to kill or repel pests, such as mosquitos, using ultrasonic sound waves,” the advisory stated. ”These products are often marketed as ‘pest control devices’ or ‘pest repellers.’ However, they may meet the definition of a pesticide under FIFRA.”
This change in regulations prompted the EPA to classify Berkey water filters as “pesticides” due to their ability to remove harmful contaminants and substances from water. The agency argued that by removing these substances, the filters were effectively repelling or mitigating pests present in the water.
However, New Millennium Concepts disputes this classification. The company claims that their filters do not use any chemical pesticides but rely solely on a filtration process to remove impurities. They argue that the EPA’s labeling of their filters as “pesticides” is misleading and unjustified.
The lawsuit filed by New Millennium Concepts alleges that the EPA’s actions have resulted in significant financial losses for the company. The stop-sales order imposed by the agency in May has severely impacted their revenue, as they are unable to sell their products labeled as ”pesticides.” This has led to a scarcity of Berkey water filters in the market, further exacerbating the company’s losses.
Furthermore, the lawsuit argues that the EPA’s actions go against the principles of the Administrative Procedures Act (APA). The agency failed to follow the proper guidelines and procedures outlined in the APA when classifying Berkey water filters as “pesticides.” As a result, New Millennium Concepts claims that the EPA’s actions are unjustified and tantamount to persecution.
The case has gained attention and support from individuals concerned about government overreach and the potential impact on consumer choice. Critics argue that the EPA’s classification of Berkey water filters as “pesticides” unnecessarily restricts access to a product known for its effectiveness in purifying water.
“It’s a question of freedom of choice,” attorney Warren Norred told The Epoch Times. “[Berkey] filters are incredibly effective devices to purify water and remove harmful contaminants, and they should be available to consumers without unnecessary obstacles or government interference.”
The outcome of this lawsuit may have implications for the regulatory authority of the EPA and the scope of its power in classifying products. It also raises larger questions about the role of government agencies in determining what constitutes a “pesticide” and the impact of such classifications on businesses and consumers.
As the legal battle between New Millennium Concepts and the EPA unfolds, the result will not only impact the future of Berkey water filters but may also set a precedent for other manufacturers and industries facing similar challenges from regulatory bodies.
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