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Report of the Senate committee on Post Audit and Oversight (under the provisions of Section 63 of Chapter 3 of the General Laws, as most recently amended by Chapter 557 of the Acts of 1986) entitled "Money Down the Drain?: A Review of Bottled Water in Massachusetts" (Senate, No. 2135). |
Massachusetts Senate
The Honorable Thomas F. Birmingham
Senate President
Senator Cheryl A. Jacques, Chair
Senator Robert A. Havern III, Vice Chair
Senator Robert L. Hedlund
Senator Richard T. Moore
Senator Marc R. Pacheco
Senator Steven C. Panagiotakos
Senator Charles E. Shannon, Jr.
"When you drink the water,
remember the spring."
--Chinese Proverb
Senator Cheryl A. Jacques, Chair
The Senate Committee on Post Audit and
Oversight works to ensure that state government is accountable to the citizens
of the Commonwealth. The Committee’s
charge is to monitor compliance with state laws, to act as a watchdog to
protect taxpayers from waste and fraud, to evaluate the efficiency and
effectiveness of state agencies and programs, and to recommend corrective
actions through legislation, regulation, and administrative initiatives.
Senate Post Audit and Oversight
Bureau
Joel Andrés Barrera
Director
Victoria Grafflin
Deputy Director and Editor
Angus G. McQuilken
Chief of Staff, Senator Cheryl A. Jacques
Carolyn Ringel
Legal Counsel, Senator Cheryl A. Jacques
Tobi Quinto
Analyst and Principal Writer and Researcher
The
Bureau acknowledges the work of Rosalind Kabrhel, Rita Noonan, Aaron Spira,
Kavitha Muthuswamy, Amanda Hart, Regina Hill, Ehren Brav, Jeff Austin, and
Julia Sechen.
In
addition, the Bureau recognizes contributions made to this report by interns
who volunteered their time in the summer of 1999, including: Christopher Adams,
Justin Anderson, David Bae, Kristen Canavan, Elizabeth Frieze, David Fusaro,
Colleen Harkins, Elizabeth Kaplan, Stephen Kerr, Brian McIntosh, and Eve
Wilder.
The
Bureau would also like to acknowledge the assistance of the Massachusetts
Department of Public Health, the Massachusetts Department of Environmental
Protection, the Massachusetts Association of Health Boards, the Massachusetts
Health Officers Association, Boston University School of Public Health,
Northeastern University, Tufts University Schools of Medicine and Public
Health, the International Bottled Water Association, and the many public health
officials, academic researchers, and representatives from the industry who
offered their expertise on the subject of bottled water.
II. Background
III. Problems with Bottles Water Oversight
1. Consumption Up, Oversight Down
2. Enforement Drought
3. Overlapping Oversight, Out-of-Date Permit Fees
V. Findings and Recommendations
Bottled water is seemingly everywhere: at the office, at the gym, and in more than
one-third of Massachusetts' homes. In
1998, U.S. sales of bottled water reached $4.3 billion. Bottled water has
become commonplace in many American diets and is the fastest growing segment of
the beverage industry.
Consumption of bottled water is increasing for a variety of reasons, including taste,
convenience, and sometimes necessity.
For these and other reasons, consumers pay anywhere from 240 to more
than 10,000 times more per gallon for bottled water than they typically do for
tap water. For example, a consumer in
Ayer, MA who pays 22 cents for a one-year supply of drinking water from the tap
could pay approximately $1,168.00 for the same amount of a top-selling brand of
treated bottled water.
Bottled water is sometimes the "water of last resort." During natural disasters such as Hurricane
Floyd, or when public drinking water supplies become contaminated, bottled
water becomes a necessity, not just a preference. During the summer of 1999 several Massachusetts towns including
Sterling, Ware, and Westford suffered contamination of their public drinking
water supplies, forcing residents to either boil their tap water or use bottled
water. Furthermore, populations such as
the very young and old and those with special health concerns are often urged
by health professionals to consume bottled water.
Although bottled water is vulnerable to the same safety concerns as tap water, the
public perceives bottled water to be safer, healthier, and more pure than tap
water. However, in Massachusetts, consumers have no guarantee that bottled
water is in fact any safer or purer than tap water. Given that consumers pay a
hefty premium for bottled water, Massachusetts has a responsibility to make
sure that bottled water is safe for consumption and that consumers know what
they are getting.
Problems with bottled water have been documented here in Massachusetts:
·
In 1995, bottled water contaminated by coliform bacteria was
given to residents of a Westport home for the elderly and handicapped. Ingesting water contaminated with coliform
bacteria, which is found in animal feces, can cause severe gastrointestinal
problems and even death in some cases.
·
In 1996, a spring in Millis used by major area bottlers
exceeded EPA standards for trichloroethylene (TCE) twice in one year. TCE, the same chemical discovered in the
Woburn water supply, is known to cause neurological problems and is a suspected
carcinogen.
·
In 1997, a Boston man bottled water from a well in his
basement and offered it for sale to the public. Boston's Commissioner of Inspectional Services was quoted as
saying, "I'd put that stuff in my gas tank before I'd drink it."
Bottled water companies that are members of an industry trade association, such as the International Bottled Water Association (IBWA), follow procedures that in some
areas exceed Massachusetts standards for bottled water manufacturing and
distribution. However, we cannot rely solely on voluntary standards such as
those issued by IBWA to ensure the safety and quality of bottled water. Voluntary standards must be supported by an
adequate structure of state regulations and enforcement.
The overall conclusion of the Senate Post Audit and Oversight Committee is that
current regulations need to be updated and actively enforced by the
Massachusetts Department of Public Health (DPH). Ironically, the explosion in bottled water sales has been
accompanied by a significant reduction in DPH oversight and enforcement
activities.
Consumption Up, Oversight Down
1. State oversight of bottled water has languished as
consumption of the product has increased dramatically, with few resources
dedicated to oversight and enforcement.
Currently, DPH estimates that only one-quarter of one full time
employee’s time is primarily dedicated to duties associated with oversight of
bottled water. An employee who was working
on bottled water full-time has not been replaced since leaving in 1996.
2. There is an extensive backlog of permit applications. Officials at DPH have estimated that 67% of
applications are awaiting initial review, with an average wait of approximately
six months. Some bottlers have waited
up to a year for a permit that, according to DPH officials, should have taken
one month to process. Furthermore,
bottlers have been allowed to continue operating for up to a year beyond their
renewal date without a renewal permit being issued.
3. DPH bottled water records are incomplete and out-of-date. The lack of a complete and up-to-date record
keeping system weakens DPH's ability to maintain a system of oversight that is
capable of identifying areas of concern, needed improvement, or success.
4. Current regulations that require the submission of bottled
water test results just once a year are insufficient. The infrequency of data submission raises
concerns about the state's ability to effectively monitor bottled water
quality, and to detect violations in a timely manner.
Enforcement Drought
1. DPH fails to ensure that required annual inspections of
bottling plants are conducted.
Despite state regulations that require annual inspections of in-state
bottling plants, most plants are inspected by DPH an average of once every 4.5
years.
2. Unlicensed bottled water brands are being sold in
Massachusetts. Bottled water brands
from companies that do not have valid, state-issued permits to sell bottled
water were found on retail store shelves, a clear violation of state
regulations. DPH has no mechanism, such
as market sampling, to actively detect violations like the sale of unlicensed
bottled water products.
3. Mislabeling of products goes undetected and
unchallenged. In spite of
state regulations requiring bottled water labels to disclose information such
as the source of the bottled water, products that violate this provision are
being sold in Massachusetts.
4. DPH fails to use available sanctions to enforce bottled
water regulations. When unlicensed and
mislabeled bottled water is found on store shelves, DPH does not take active
steps to remove the product or impose fines.
5. DPH has no formal recall policy for bottled water. Some recent bottled water recalls have been
conducted without public notification or written documentation of the terms and
conditions of the recall. The lack of a
formal recall policy can lead to questions of industry interference in the
oversight process, and may leave consumers without vital product quality
information.
Overlapping Oversight and
Out-of-Date Permit Fees
1. The division of oversight duties between state and local
agencies creates confusion and delays the permitting process. Furthermore, there is no clear policy that
details how bottled water oversight duties are to be shared between local
boards of health and DPH.
2. Current permit fees do not reflect the cost of oversight or
the value of the natural resource.
At $25 annually for in-state bottlers and $100 annually for out-of-state
bottlers, the fees do not adequately support even a minimal system of oversight
to ensure the quality and safety of bottled water.
Given the continued surge in
consumption of bottled water, Massachusetts should maintain an aggressive
system of oversight to ensure that standards of safety for bottled water are
met and that consumers receive the quality product for which they pay a hefty
premium. Massachusetts needs a common
sense system of bottled water oversight that is supported by sufficient staff
and resources.
Recharging Bottled Water
Oversight
1. DPH should dedicate sufficient staff and resources to
bottled water oversight and enforcement duties.
2. DPH should clear up its bottled water permit backlog and
eliminate its practice of allowing companies to continue bottling operations
without a properly issued permit or a documented extension.
3. DPH should revamp its bottled water record-keeping system. Complete and accurate information should be
available for permitted products, inspections, and violations.
4. Bottled water companies that sell in Massachusetts should submit required weekly
microbiological test results on a quarterly basis as further assurance that
bottled water quality meets Massachusetts safety standards.
Strengthening Enforcement
Measures
1. As required by Massachusetts bottled water regulations,
companies that sell bottled water in Massachusetts should undergo annual
inspections. DPH should ensure
that annual inspections occur and are adequately documented.
2. Random market sampling should be conducted to ensure that
bottled water for sale on Massachusetts store shelves is properly licensed and
labeled. To facilitate market sampling, Massachusetts
should mirror Connecticut and New York requirements that permit numbers be printed
on bottled water containers so that proof of permitting is readily visible to
inspectors and consumers.
3. The state should enforce its labeling requirements. If a bottler draws from a municipal water
supply, the label should clearly state that the source is a "public water
supply" as well as the location of the source.
4. DPH should use its statutory authority to impose sanctions,
including removal of unpermitted products from store shelves and imposition of
fines when appropriate.
5. DPH should establish a formal recall policy including a
procedure for appropriate public notification, and a requirement to document
the terms and conditions of any product recall.
Centralize and Support a System
of Oversight
1. A clear policy should be in place that clarifies the
division of bottled water oversight duties between local boards of health and
DPH. This will eliminate the confusion
of roles that can result in permitting delays and a lack of adequate
inspections.
2. Massachusetts should increase permit fees. Permit fees should more accurately reflect
the value of the natural resource and support an adequate regulatory structure.
Bottled water is seemingly everywhere: at the office, at the gym, and in more than
one-third of Massachusetts homes.[1] In 1998 U.S. sales of bottled water reached
$4.3 billion.[2] Bottled water has become commonplace in many
American diets and is the fastest growing segment of the beverage industry.[3]
Consumption
of bottled water is increasing for a variety of reasons, including taste,
convenience, and sometimes necessity.
For these and other reasons, consumers are paying anywhere from 240 to
over 10,000 times more per gallon for bottled water than they typically do for
tap water.[4] For example, a consumer in Ayer, MA who pays
22 cents for a one-year supply of drinking water from the tap could pay
approximately $1,168.00 for the same amount of a top selling brand of treated
bottled water.[5]
Cost of one-year supply of drinking water for one person, at 8-oz. glasses of water each day:
| Tap Water | Treated Bottle Water |
| $0.22 | $1,168.00 |
Although bottled water is vulnerable to the same safety concerns as tap water, the
public perceives bottled water to be safer, healthier, and more pure than tap
water.[6]
Given that consumers pay a hefty premium for bottled water, Massachusetts has a
responsibility to make sure that bottled water is safe for consumption and that
consumers know what they are getting.
When Bottled Water is a
Necessity…Not Just a Preference
Bottled
water is also often the "water of last resort." During natural disasters such as Hurricane
Floyd or when public drinking water supplies become contaminated, bottled water
becomes a necessity, not just a preference.
For example, during the summer of 1999 several Massachusetts towns
including Sterling, Ware, and Westford suffered contamination of their public
drinking water supplies, forcing residents to boil their tap water or use
bottled water.[7]
Bottled
water is also more than just a preference for certain populations such as the
very young, the elderly, and those with special health concerns. These populations are often urged to consume
bottled water as an alternative to tap water out of concern for their safety.[8] Consumers in these situations must be
assured that their purchase will assist, rather than pose risks to, their
health.
Milwaukee Water Woes
In 1993 Cryptosporidium contamination of the Milwaukee municipal water
supply sickened 400,000 people and killed more than 100 people who drank water
that was tainted with the microscopic parasite.[9]
Infection with Cryptosporidium, which is found in the
feces of infected humans and animals, can cause gastrointestinal and physical
complications such as diarrhea, nausea, and fever.[10] Infection can be fatal to those with fragile
immune systems such as infants and the elderly.
Contamination of water supplies
with Cryptosporidium can occur when
drinking water supplies become polluted with run-off from sewage or animal
manure. Despite use of defensive
techniques such as filtration and chlorination of the water supply against
microorganismal contamination, Cryptosporidium
still managed to wreak havoc in Milwaukee.
Public
drinking water supplies are also vulnerable to contamination that may result
from natural events, such as heavy rainstorms.
Hurricane Havoc
Heavy rains from events such as
hurricanes continue to pose threats to public drinking water supplies long
after they pass.
During the summer of 1999,
flooding caused by Hurricane Floyd resulted in contamination of public water
supplies in the central Massachusetts towns of Ware and Sterling, and in the
northeastern community of Westford. E.coli bacteria was found in the three
water systems that serve more than 20,000 people.[11]
Floodwaters
are a potential breeding ground for bacteria such as E.coli, which can cause serious gastrointestinal sickness and even
death.
Overview of Bottled Water
Regulations
In
1988, based on a legislative mandate, the Massachusetts Department of Public
Health (DPH) revised state bottled water regulations that were originally
established in the 1930s.[12] This section briefly summarizes the
standards that govern bottled water regulation.
How
is the bottled water industry regulated?
The
bottled water industry is regulated on both the federal and state levels. In addition, many major bottlers follow
voluntary standards through membership in a trade association.[13] Federal, state, and industry standards are
designed to ensure that bottled water is tested, safe, and of good quality.
Federal
Regulations
Throughout the United States, bottled
water is regulated as a food product by the U.S. Food and Drug Administration
(FDA). Bottled water companies must
adhere to FDA regulations regarding standards of quality, standards of
identity, and good manufacturing practices.[14] Bottled water companies must also adhere to
"National Primary Drinking Water Regulations" promulgated by the U.S.
Environmental Protection Agency (EPA).[15] However, enforcement of these federal
regulations is generally left to the states.[16]
State
Standards
In
addition to federal regulatory requirements, bottled water companies that sell
in Massachusetts are also subject to the state's bottled water statutes and
regulatory requirements. These statutes
and regulations establish water sampling and testing requirements, labeling
requirements, a permitting process, and water quality standards.[17]
State
standards include the following requirements:
1)
Permitting. State law requires that anybody selling
bottled water in Massachusetts must have a permit. The permit is valid for one year and may be renewed. Local boards of health issue permits to
in-state bottlers operating within their jurisdictions, although DPH often
assists the local boards by reviewing the testing results and product labels
that are included with the permit applications.[18] Out-of-state bottlers correspond directly
with DPH for permits to distribute their product in Massachusetts.[19]
2)
Inspections. Massachusetts requires annual inspections of
in-state bottling plants before a permit is issued or renewed.[20]
3)
Labeling
Requirements. State labeling
regulations require that bottled water labels identify the type of water and
the location of its source on all bottled water sold in Massachusetts. For example, "if the water source is a
public water supply, the label must state 'public water supply'."[21]
4)
Testing
Requirements. Massachusetts requires
companies that sell bottled water in Massachusetts to conduct weekly tests for
microbiological content and to test annually for chemical and physical
properties of the source and finished water.
These results must be submitted once a year with new or renewal bottled
water permit applications.[22]
Who enforces bottled water statutes and
regulations in Massachusetts?
DPH
enforces the bottled water statutes and regulations with assistance from the
Massachusetts Department of Environmental Protection (DEP) and local boards of
health.
Most
bottled water related enforcement duties are carried out under the Food
Protection Program (FPP) within the Division of Food and Drugs at DPH. The stated mission of FPP is "to strive
to ensure a safe and wholesome food supply in the Commonwealth of
Massachusetts."[23]
FPP
food inspectors enforce regulations covering dairy products, seafood, meat,
poultry, and bottled water. Enforcement
is one aspect of an inspector's overall job.
DPH
food inspectors may:
·
Conduct unannounced inspections of bottling plants to ensure
quality and safety of manufacturing processes and the final product;
·
suspend plant operations if violations occur with operations
or the final product;
·
prohibit the sale of products that do not comply with
regulations and standards; and
·
impose fines and penalties of $100 for the first offense and
up to $500 for each subsequent offense. [24]
DEP
and DPH Share Certain Oversight Duties
DEP is involved in bottled water
oversight at two critical points: (1) to approve an in-state water source that
is proposed for use in commercial bottling of water and (2) at the request of
DPH, such as when the source is suspected to be contaminated or is in violation
of water quality standards.[25]
Because
DEP is responsible for initial approval of in-state sources for bottled water,
DPH is responsible for overall oversight, a memorandum of understanding between
DPH and DEP allows the two state agencies to work together. DEP has designated a staff person to act as
its bottled water liaison to DPH.[26]
Accomplishments in Massachusetts
The
accomplishments of Massachusetts in the area of bottled water regulation should
be recognized.
·
In the late 1980s Massachusetts was a pioneer in updating
statutes and regulations governing the bottled water industry.
·
Throughout the 1990s when the FDA proposed tougher standards
for bottled water, DPH consistently submitted comments in support of stricter
federal regulations.[27]
·
Massachusetts has a strong record of providing information
to the public on bottled water upon request and via the Internet. "Quality Standards for Bottled
Water," permit applications, and an annual survey of the brands sold in
the state are available on DPH's website.[28]
· Massachusetts is one of only 14 states to have regulations that require source labeling on bottled water products.[29]
In
spite of the progress made by updating bottled water statutes and regulations
in 1988, Massachusetts' system of bottled water oversight has not met all of
the expectations and requirements outlined in the state's regulations and
standards. The Committee has identified
several areas of concern with the current system of bottled water oversight.
Languishing Oversight and Limited Resources
State oversight of bottled water has
languished as consumption of the product has increased dramatically, with few
resources dedicated to oversight and enforcement. Ironically, the explosion
in bottled water sales has been accompanied by a significant reduction in DPH
oversight and enforcement activities.[30]
·
As recently as 1996, there were two DPH employees who worked
on bottled water oversight, amounting to 1.5 full time employees.[31]
·
Currently, DPH estimates that one-quarter of one full-time
employee's time is primarily dedicated to carrying out duties associated with
oversight of bottled water.[32]
Table 1. Massachusetts' Staffing Shortage
|
|
Massachusetts |
Mississippi |
California |
New York |
New Jersey |
Virginia |
Oklahoma |
|
Number of Full-time State
Employees Dedicated to Bottled Water Oversight[33]
|
0.25 |
3 |
2 |
1-1.5 |
1 |
1-2 |
1 |
A Recipe for Concern
Since 1980, the Food Protection
Program (FPP) has seen "severe staff reductions."[34] The number of food inspectors employed at
DPH, whose duties include bottled water oversight, has dwindled from 37 in 1980
to 13 in 1999, a 60% reduction (see figure 1).
While the number of inspectors has decreased over the past two decades,
the number of establishments that need to be inspected has increased.[35]
The FPP competes for funding and
resources with other public health initiatives such as AIDS programs and
tobacco control. Exacerbating this
problem is the fact that within FPP, bottled water competes for attention and
resources with other foods that demand oversight, such as dairy, meat, poultry,
and seafood products.
Figure 1.
Declining Number of Inspectors Employed
with the Food Protection Program
Source: Letter from Food Protection Program, Department of Public Health, to Senate Post Audit and Oversight Bureau. 9 July 1999.
Drowning
in Bottled Water Permits
There is an extensive backlog of bottled water permit applications. Officials at DPH have estimated that 67% of
applications are awaiting initial review, with an average wait of approximately
six months.[36] Some bottlers have waited up to a year for a
permit that, according to DPH officials,
should have taken one month to process.[37] Furthermore, bottlers have been allowed to
continue operating for up to a year beyond their renewal date without a renewal
permit being issued. [38]
Despite
the fact that the process of reviewing permit applications monopolizes most of
the time spent on bottled water oversight, an extensive backlog persists.[39]
Timely processing of permit
applications is also an issue of concern among local boards of health.[40]
A
Leaky Record Keeping System
DPH
bottled water records are incomplete and out-of-date. The lack of a complete and up-to-date record keeping system weakens
DPH's ability to maintain a system of oversight that is capable of identifying
areas of concern, needed improvement, or success.
For example, DPH provided records to the Senate Post Audit and Oversight Committee that were not complete or up-to-date regarding permitted companies and
inspections. DPH provided a list of the companies permitted to sell bottled
water in Massachusetts that included several bottling companies that are no
longer in business.[41] Furthermore, DPH officials have stated that
they do not keep records of violations, such as mislabeled or unlicensed
products.[42]
Testing the Waters:
Results Trickle In
Current
regulations that require the submission of bottled water test results just once
a year are insufficient. The
infrequency of data submission raises concerns about the state's ability to
effectively monitor bottled water quality, and to detect violations in a timely
manner.
Under current regulations, test results of the source and finished water are
submitted once a year with a permit application from a bottled water
company. Massachusetts bottled water
regulations require annual testing for certain chemicals, such as trichloroethylene
(TCE) and arsenic, and weekly testing of microbiological content.[43] The knowledge that test results will be seen
only once a year provides little incentive for companies to inform regulatory
authorities of potentially dangerous quality problems.
Infrequent
Inspections: "Trust But Verify
"
DPH fails to ensure that required annual inspections of bottling plants are
conducted. Despite state regulations
that require annual inspections of in-state bottling plants, most plants are
inspected by DPH an average of once every 4.5 years.[44] While local boards of health may conduct the
required inspections in the interim, DPH records do not indicate when an
inspection is conducted by a party other than DPH. Furthermore, although DPH has regulatory authority to conduct
surprise inspections of bottling plants, it has no history of having conducted
any within the past five years.[45]
Officials at DPH explain that their prolonged cycle of inspections is due to their focus on other food safety issues.[46] However, the infrequency of DPH inspections
raises public health concerns and could dilute the public's confidence in the
safety of bottled water. Concerns about
infrequent inspections and overall product safety are highlighted by the 1996
recall of Veryfine Balsams Spring Baby Water, and by TCE contamination of the
Ann & Hope well in Millis, Massachusetts.
Bad Baby Water
In 1996, containers of Veryfine
Balsams Spring Baby Water and Balsams Baby Water were recalled due to
contamination with mold, bacteria and fungus.[47] This contamination was discovered after
consumers complained about “scum,” “black particles,” and cottony-looking mold
floating in the containers.[48]
Bottled water is often
recommended for the very young by health professionals due to their delicate
immune systems, which are susceptible to infection by microorganisms. Some manufacturers label their bottled water
for use in preparing infant formulas.[49] Although many people assume bottled water to
be safer to drink than ordinary tap water, the FDA continues to advise
consumers to treat bottled water as they would tap water by boiling before
mixing with baby formula.[50]
Unlicensed Bottled Water Products
Unlicensed bottled water brands are being sold in Massachusetts. Bottled water brands from companies that do not have valid, state-issued permits to sell bottled water were found on retail store shelves,
a clear violation of state regulations.[51] DPH has no mechanism, such as market
sampling, to actively detect violations like the sale of unlicensed bottled
water products.
Fill 'er Up?
In 1997 a man in Dorchester, MA
was caught bottling water from the basement of his house and labeling it as
"Youth Fountain" water. The
Commissioner of Boston Inspectional Services was quoted as saying; "I'd
put that stuff in my gas tank before I'd drink it." [52]
Bottles of the water were advertised
for sale at a store a few blocks away from the house where it was being
pumped. The label on "Youth
Fountain" showed a gray-haired man drinking the water and reflected in a
mirror as a young man.[53]
This is not the only example of
unlicensed bottled water products being offered on Massachusetts store shelves.
In a field survey conducted by
the Senate Post Audit and Oversight Bureau during the summer of 1999,
unlicensed bottled water products were found for sale at retail stores in
Boston and surrounding areas. Of the 37
different brands found for sale, four (11%) were not listed in DPH records as
being permitted for sale in Massachusetts.
The unlicensed brands found were: Apollinaris,
Evans Spring Water, Indian Wells, and Maine Raine. [54]
Some states, such as New York and Connecticut, require water bottlers to imprint
their state permit numbers directly on the product.[55] This policy serves as additional assurance
that bottled water sold in those states is properly licensed for sale, and
facilitates spot-checking for unlicensed products.
Lax
Labeling Enforcement
Massachusetts' requirements for source labeling of bottled water are more stringent than federal regulations for source labeling.
However, the Commonwealth's enforcement of its labeling regulations is
lax.
Massachusetts is one of only 14 states that require bottling companies to indicate the source of their bottled water on the label.[56] For example, if the source of bottled water
is a public water supply, the label must state "public water supply."[57] Contrary to Massachusetts bottled water
regulations, some bottled water companies whose sources are public water
supplies are selling their products in Massachusetts without clearly disclosing
this fact on their product labels.[58]
"Fancy Bottles at Fancy Prices"[59]
Until 1993, federal regulations
did not require bottled water companies to reveal on the label the source of
their bottled water.[60] In 1991, the U.S. Energy and Commerce
Committee learned that fully 25% of bottled water brands were simply drawn from
municipal supplies and put into "fancy bottles at fancy prices" and
that another 25% couldn't document from where their water was obtained.[61] As a result, the FDA tightened its
regulations. Under the new federal
rules, if bottled water is derived from a municipal source, this information
must be clearly stated on the label.
However, if the product has been treated sufficiently to meet
definitions of "distilled" or "purified" water, then source
disclosure is not required by the FDA.[62] Massachusetts state regulations, however, do
not allow for this exemption, and clearly require source disclosure on the
label when bottled water comes from a public water supply.[63]
From a consumer's right-to-know
perspective, this lack of full disclosure is troubling. For instance, some products that are derived
from public water supplies present an image that could lead consumers to
believe the water comes from natural springs.
Misleading Mountains
Aquafina, a leading brand of
bottled water produced by PepsiCo, Inc. has a label that prominently features a
sketch of a mountain range. However,
contrary to Massachusetts state regulations, the label does not reveal that the
source of the water is in fact the Town of Ayer's public water supply. The only way a consumer would know that the
water is from a municipal water supply is by interpreting the letters
"PWS" on the bottle cap, an industry term for "public water
supply." Current Massachusetts regulations
explicitly require disclosure of the water source on the product label.[64]
PepsiCo pays the Town of Ayer the
same price that local residents pay for their water, 90 cents for every 750
gallons. This translates to
approximately two one-hundredths of a cent for a 20 oz. bottle of Aquafina that
sells in the store for approximately one dollar, 5000 times the actual cost of
the water. PepsiCo uses about 300,000
gallons of water per day to produce Aquafina, fully one-third of the town's
overall usage. PepsiCo faces no
restrictions on the amount of water it can draw, while Ayer residents are
restricted in their outdoor water usages. [65]
Watered
Down Sanctions
DPH fails to use available sanctions to enforce bottled water regulations. Even when unlicensed or mislabeled bottled
water is found on store shelves, DPH does not take steps to remove the product
or impose fines.[66]
State law authorizes DPH to impose penalties of $100 for a first offense and up to
$500 for each subsequent offense.[67] In addition, DPH or the local boards of
health can suspend or revoke in-state bottlers' permits to operate if the plant
fails to comply with any of the regulations.[68] However, fines are rarely issued for bottled
water violations.[69]
Solvents in the Spring
In 1996, a popular spring in
Millis, MA used by major area bottled water suppliers twice exceeded allowable
levels of tricholoroethylene (TCE). The
source, owned by the Ann & Hope Company, had a history of TCE
contamination, including at least two additional incidents in the previous four
years.[70] This spring is located beneath a commercial
parking lot, adjacent to a factory that produces asphalt-roofing shingles.
Exposure to TCE, an industrial
solvent used as a degreaser in dry cleaning and metal parts industries, can
cause severe neurological and physical problems, and is a possible carcinogen.[71] TCE is the same chemical that was found in
the water supply in Woburn and is suspected of contributing to the development
of multiple childhood leukemia cases in that community.
The spring is not currently being
used as a commercial bottled water source, but the water is being used to fill
swimming pools.[72]
No Policy on Product
Recalls
DPH has no formal recall policy for bottled water. Some recent bottled water
recalls have been conducted without public notification or written
documentation of the terms and conditions of the recall. The lack of a formal recall policy can lead
to questions of industry interference in the oversight process, and may leave
consumers without vital product quality information.
Silent Recall
In 1996, after consumer
complaints about taste, Poland Springs recalled some of its bottled water
products from Massachusetts store shelves because of high chlorine levels. Although DPH prepared a press release on the
recall, it was never issued and neither DPH nor the company publicized the
recall. [73] This case highlights concerns about the lack
of a formal recall and public notification policy at DPH.
When asked about its recall policy, officials at DPH responded that negotiations
about product recalls are done with companies over the telephone, and are not
documented or recorded in any way.[74] This failure to document terms and
conditions of a recall raises serious questions of accountability.
Officials at DPH report that they informally follow federal guidelines governing recalls.[75]
However, in Massachusetts, recall procedures are not addressed in the state's
bottled water regulations, and DPH has not adopted any formal recall policy.
Waste in the Water
In 1995, residents of Greenwood
Terrace, a home for the elderly and handicapped in Westport, MA were provided
with bottled water that was contaminated with fecal coliform.[76] Fecal coliform is a bacterium found in the
intestines of humans and animals that is transmitted by unsanitary conditions
and can cause severe gastrointestinal complications, including diarrhea.
Greenwood Terrace residents
include many senior citizens with sodium-restricted diets who require low
sodium or sodium free water. The state
agreed to provide the residents with bottled water because the facility's own
water supply was contaminated, possibly by road salt run-off. Simpson Springs of South Easton, MA won the
contract to supply the bottled water to Greenwood Terrace.
Problems with the Simpson Springs
bottled water became apparent when a Greenwood Terrace employee read in the
newspaper that the Simpson Springs bottling plant had been ordered by the state
to shut down temporarily due to bacterial contamination violations. Upon contacting the bottler, the employee
was told that a violation had occurred, but that the plant was back in
compliance.
However, when Simpson Springs again began delivering water to Greenwood Terrace, the employee nevertheless submitted samples of the water for testing to the Westport Health Department. The samples of wate