Bottled water meets the needs of some of our most vulnerable individuals, those with compromised health. In fact, bottled water is often recommended for people whose immunity may be compromised by chemotherapy, transplant operations, or diseases such as AIDS. For example, the Centers for Disease Control and Prevention (CDC) suggests bottled water as one important alternative for HIV patients because tap water offers a less reliable quality. Specifically, the CDC notes:

“Because you cannot be sure if your tap water is safe, you may wish to avoid tap water, including water or ice from a refrigerator ice-maker, which is made with tap water. Always check with the local health department and water utility to see if they have issued any special notices for people with HIV about tap water.

You may also wish to boil or filter your water, or to drink bottled water. Processed carbonated (bubbly) drinks in cans or bottles should be safe, but drinks made at a fountain might not be because they are made with tap water. If you choose to boil or filter your water or to drink only bottled water, do this all the time, not just at home.”

Moreover, the U.S. Environmental Protection Agency (EPA), like CDC, recommends bottled water as a good option for individuals with compromised immune systems, even at times when tap water quality is satisfactory for everyone else.  Other options include boiling tap water. Apparently, the EPA does not consider tap and bottled water to be the same quality or it would have suggested boiling both.

There are occasions where tap water is insufficient for more than a short period of time and bottled water becomes an important solution. For example, a recent article in The New York Times points out that the New York-Presbyterian/Columbia Hospital uses bottled water because their tap water has proven dangerous to patients. For three years, the hospital has kept signs posted over sinks that read: “Do not drink the water. Use bottled water for drinking, brushing teeth, or taking medication.” The hospital has not permitted anyone to drink the tap water since 2005 after two patients died from Legionnaire’s disease. This disease comes from a common bacterium that grows rapidly in industrial-sized water systems. The concern about this bacterium remains. “Until that is resolved, we will not be serving tap water,” a hospital spokesperson told The Times.

The consistent quality and portability of bottled water means it has become a solution during emergency situations. In fact, tap water periodically experiences quality control problems that lead public officials to issue alerts calling on individuals to boil water before using it or use only bottled water for drinking, cooking, and brushing teeth. Moreover, the Environmental Protection Agency and the Centers for Disease Control and Preventionboth recommen bottled water for such emergency uses. Other options include boiling tap water.

In a weather-related or other emergency, an easily accessible supply of bottled water is essential. Because water treatment facilities can be affected during a power outage, tap water quality can become compromised. In that case, officials issue an alert calling people to boil their water or drink bottled water.  A CDC paper offering public health tips for individuals in this situation suggests the use of bottled water for anyone using infant formula that requires the addition water:

“If using ready-to-feed formula is not possible, it is best to use bottled water to prepare powdered or concentrated formula. If bottled water is not available, use boiled water. Use treated water to prepare formula only if you do not have bottled or boiled water.”

The September 11, 2001 disaster serves as a reminder of the importance of maintaining a robust bottled water industry. The International Bottled Water Association (IBWA) reports that after the attacks, bottled water companies donated more than two million bottles of water to rescue workers at all locations. Similarly, the bottled water and beverage industry, in general, provided millions of bottles of water, other supplies, and financial donations to victims of Hurricane Katrina. Such donations are common.

Also consider the fact that many times when we do have emergencies, ranging from major events to shorter-term boil water alerts, retail outlets often run low on, or completely out of, bottled water because of increased demand. What will if we had much smaller supplies because many shops accepted the line that it is too wasteful to carry, as some shops have already done? The prospect of fewer people having adequate access to an emergency water supply could have serious, adverse impacts.

Even with existing resources, getting bottled water to residents in time of need can be a challenge. After Hurricane Rita in September 2005, the Texas Rural Water Association (TRWA) realized the importance of planning and keeping bottled water on hand. They formed the Rural Water Emergency Assistance Cooperative (RWEAC) to address such issues. The Texas Rural Water Association Director Tom Duck explained: “RWEAC was created in recognition of the fact that rural utilities are often the last to receive vital state and federal assistance in times and circumstances of an emergency as demonstrated during Hurricane Rita this past September.”

Bottled water regulation is at least as stringent as tap water regulation. Yet a key line of attack against bottled water comes from environmental activists and others who complain that bottled water does not comply with the EPA standards for tap water, suggesting that bottled water standards are lower. As a result, they say, bottled water quality may not even be as good a tap water quality. These arguments were outlined in the “study” released by the Natural Resources Defense Council in 1999. However, such arguments don’t mesh with reality.

The EPA sets standards for tap water under the Safe Drinking Water Act (SDWA) and the Food and Drug Administration (FDA) sets standards for bottled water under the Federal Food, Drug, and Cosmetic Act (FFDCA). The FDA regulations are based on EPA standards and are mostly the same, with the exception of a few areas where tap water regulations don’t make sense or where the FDA includes additional or more stringent requirements. According to the EPA, both sets of standards produce bottled and tap water that is safe.

Under the SDWA, the EPA regulates more than 80 drinking water contaminants that might be found in the water of public water systems. For each regulated contaminant, the EPA usually specifies a maximum contaminant level goal (MCLG), which represents the level of a contaminant that the EPA ideally wants to allow in drinking water. The EPA uses the MCLG as a guide in setting the enforceable standard, the maximum contaminant level (MCL). The MCL represents the amount of that contaminant that systems may legally allow in tap water. For example, the EPA allows systems to provide only drinking water that contains no more than 0.005 milligrams of benzene per liter of water. When the EPA determines that it is technically or economically infeasible to monitor for a contaminant, it is directed by Congress to promulgate mandatory “treatment techniques,” such as mandatory installation of filtration devices.

The FFDCA requires that the FDA apply SDWA standards to the extent they make sense for bottled water. Its version of an MCL is a Standard of Quality (SOQ). And according to the FFDCA, SOQs must be “no less stringent” than EPA MCLs and “no less protective” than EPA treatment techniques. In other words, the FDA has two choices when setting a regulation. It must either be equivalent to EPA standards or it must be more stringent. The law does not allow the FDA to set standards that produce a lower quality product.

When deciding on an SOQ, the FDA must review EPA regulations for tap water once the EPA finalizes or revises them to assess whether they are applicable to bottled water. If the FDA finds that the tap water regulations are applicable, it must propose those same regulations for bottled water within 180 days after the EPA issues the tap water standards. The SDWA of 1996 demands that if the FDA fails to act, the EPA tap water regulations become the standards for bottled water. As a result, the FDA has overwhelmingly applied the EPA’s tap water standards to bottled water. [See Appendix A at the end of this document; It offers a comparison of FDA and EPA standards. Like the EPA, the FDA requires that the water be tested regularly to ensure that standards are met.

There are some cases where the standards vary because of differences between delivery systems. Since tap water travels through pipes, regulations need to address potential contamination from pipes. Sanitary packaging for bottled water means that regulations related to food and food packaging apply to bottled water.

FDA regulations are more stringent for some chemicals, including regulations of lead, copper, fluoride, and phenols. Henry Kim, Ph.D., a supervisory chemist at the FDA’s Center for Food Safety and Applied Nutrition, Office of Plant and Dairy Foods and Beverages points out the difference between regulations for lead in both tap and bottled water. He notes that EPA standards tolerate a higher level of lead than FDA standards for bottled water, because lead can leach from the pipes into water before it reaches the tap, making it more difficult to control. The EPA requires that tap water contain no more than 15 parts per billion of lead, while the FDA standard is much more stringent at 5 parts per billion. The FDA opts for a more stringent standard simply because it is more readily attainable for bottled water.

 Some tap water regulations don’t apply to bottled water because the issues they address deal with tap water purification issues and pipe delivery. For example, the EPA regulates two substances—acrylamide and epichlorohydrin—simply because they are used in tap water treatment plants and can enter the water there. But these substances are not used to purify or package bottled water and hence are not an issue and do not warrant FDA regulation. The FDA also does not have a regulation for asbestos because they are not a problem in bottled water sources. The EPA regulates asbestos because it is used in cement pipes that distribute tap water. The FDA does not employ the EPA regulation for phthalates because the FDA applies standards related to food additives to ensure that such chemicals remain at levels below health concerns. Moreover, most bottled water comes in Polyethylene terephthalate (PETE or PET) plastic containers, which do not contain phthalates. The FDA does not apply EPA’s Enhanced Surface Water Treatment Rule since it applies to surface water. Bottled water typically comes from underground sources or from tap water that has already complied with the surface water rule.

When it comes to managing microbiological agents, FDA regulations vary from the EPA’s, but again, they must be “no less protective.” Instead of mandating specific filtration or disinfection methods, FDA mandates that water meet the same standards as all food products. These include sanitary production and packaging regulations as well as rules to ensure products are not “adulterated” with any harmful substance. In other words, the FDA regulates the final product and gives bottled water companies some leeway in how they reach that level of quality. The FDA explains:

“These regulations require that bottled water be safe and that it be processed, bottled, held and transported under sanitary conditions. Processing practices addressed in the CGMP regulations include protection of the water source from contamination, sanitation at the bottling facility, quality control to assure the bacteriological and chemical safety of the water, and sampling and testing of source water and the final product for microbiological, chemical, and radiological contaminants. Bottlers are required to maintain source approval and testing records to show to government inspectors. Checking adherence to part 129 regulations is an important part of FDA inspections of bottled water plants.”

Essentially, this means that when companies bottle water, the product must not present any human health threat, and the company must be able to demonstrate that fact to the FDA inspectors or face enforcement penalties. Specifically, regulations demand that bottled water not be adulterated any “deleterious substance that may be injurious to health,” which includes additives from the containers that might enter the water in trace amounts.

There are many good reasons why the FDA takes this approach. In particular, one of the qualities that many consumers like about bottled water is that many kinds come from natural sources and are not subject to the types of treatment techniques—such as chlorination—that affect the flavor of the product. And chlorination is not necessary for bottled water as it is for tap water, because bottled water is not delivered to the consumer via pipes, where it can become contaminated. Sanitary packaging essentially performs the role that chlorine does during pipe transport to consumers. Moreover, much bottled water comes from groundwater sources, which according to the EPA, is less likely to become contaminated, and hence does not require the same kind of disinfection. According to the EPA, “Ozone is preferred by bottlers, though it is more expensive than chlorine, because it does not leave a taste and because bottlers do not need to worry about maintaining disinfectant in water sealed in a container. Untreated water, whether from a bottle or from a tap, will have the characteristic taste of its source.” The International Bottled Water Association reports that its members provide 85 percent of the bottled water in the United States. Membership demands that companies employ a multi-barrier approach which may include steps such as source protection, source monitoring, reverse osmosis, micron filtration, distillation, ozonation and final disinfection.” Consumers can contact companies to learn about disinfection techniques before selecting a brand if the information does not already appear on the label.

Information found on the label is also regulated by the FDA. Labeling regulations demand that bottled water labels contain only accurate information. Products that don’t meet FDA standards are considered “misbranded.” Regulatory definitions for specific terms—“ground water,” “mineral water,” “purified water,” “sparkling water”—are all defined in FDA regulations (See Table I in this FDA document).

Bottled water providers must also meet “Good Manufacturing Practices.” Under these regulations, source water must come from an approved source that meets all the laws and regulations of the government that has jurisdiction of the water source. Good manufacturing practices also include regulations on processing, packaging, transport, and storage to ensure sanitary conditions. They also mandate that bottled water companies regularly monitor the water source and final products to ensure they comply with safety regulations. Other regulations involve specific identity and quality requirements for bottled water.

Nonetheless, some environmental activists have suggested that bottled water is of a lower quality because FDA only regulates water in “interstate commerce.” They suggest that a large share of bottled water is produced solely intrastate and hence they lead the public to believe that such water must be of a lower quality because it does not fall under FDA jurisdiction. For example, a Natural Resources Defense Council activist suggested in congressional testimony that as much as 40 percent of bottled water isn’t covered by FDA regulations. The figure appears to be the result of pure, but even if this claim were correct, it should not be at all alarming. In addition to the fact that states regulate bottled water to ensure safety, bottled water has a tremendous safety record, with very few problems reported. The next section of this paper compares that record to tap water and finds that there have been far fewer health-related problems associated with bottled water.

In any case, the idea that bottled water providers produce water that is lower quality than demanded by FDA is highly unlikely. In fact, the data in NRDC’s own report on bottled water shows that an overwhelming majority of bottled water meets or exceeds federal water standards. According to NRDC it “commissioned independent lab testing of more than 1,000 bottles of 103 types of bottled water from many parts of the country.” NRDC reports that only “four waters” failed (two exceeded standards for fluoride and two for coliform bacteria) to meet federal standards. The NRDC claims that this amounts to 4 percent failure rate, which indicates a success rate of upwards of 96 percent. That is an impressive record.

Moreover, given the broad definition of interstate commerce, it is unlikely that anyone could make a legal case that any bottled water doesn’t fall under FDA’s jurisdiction. In fact, “interstate commerce” covers most all commercial activity. For example in Wickard v. Filburn, wheat grown in a farm and consumed on a farm is considered to be part of interstate commerce because interstate commerce is affected because the farmer does not have to buy wheat in the marketplace. In Gonzales v. Raich, marijuana grown in a home for medicinal use under California law was considered interstate commerce and subject to federal law as well. In addition, if any part of a food product or packaging involves accessing materials that are produced or affect interstate, the produce it covered. Finally, the Food, Drug, and Cosmetics Act says that courts shall presume for enforcement purposes all food products, including bottled water, are part of interstate commerce. Specifically, 21 U.S.C. §379a of the law reads: “In any action to enforce the requirements of this Act respecting a device, food, drug, or cosmetic the connection with interstate commerce required for jurisdiction in such action shall be presumed to exist.”

In Senate testimony the NRDC admits that the most likely case is that bottled water falls under FDA jurisdiction. In a footnote to the claim that the water isn’t regulated by FDA, the NRDC staffer notes: “However, the bottled water industry, by and large, has a significant effect on interstate commerce and many of the products used in the bottling plants—such as the bottles, labels, the caps—move through interstate commerce even if the source of the water may be intrastate. Given the prevalence of moving plastic bottled through interstate commerce, most, if not all, bottled water should fall under FDA’s watch.”

Bottled water providers also must comply with other standards—both public and private. There are state-level regulations, some of which, such as those from California, Pennsylvania, and Florida, are more stringent than federal regulations. In addition, the International Bottled Water Association membership—which covers 85 percent of bottled water—comply with even stricter industry standards. In addition, the association’s membership is subject to unannounced sanitary inspections by two independent groups—the National Sanitation Foundation (NSF) and Underwriters Laboratories (UL).

In the rare case that a bottle of water does not meet a standard, or when it doesn’t meet a California standard, there still is no public health consequence. In fact, a high success rate of meeting EPA/FDA standards indicates that bottled water meets an exceedingly high safety standards. EPA regulators design the regulations with safety factors to ensure that even if consumers are exposed to contamination many times higher than levels allowed by regulation, they would not suffer any public health impact, despite claims by environmental activists suggesting that trace level chemicals in our water may give us cancer. In their landmark study on cancer, scientists Richard Doll and Richard Peto noted back in 1981 when standards were not nearly as stringent: “With the possible exception of asbestos in a few water supplies, we know of no established human carcinogen that is ever present in sufficient quantities in large U.S. water supplies to account for any material percentage of the total risk of cancer.”

A periodic exceedance for chemical contaminants should be of little concern. In fact, EPA regulations do not expect every sample to meet their standards for chemical contaminants. Instead, the levels are averaged over a period of time because the risks of such trace-level chemicals are associated with long-term exposures to contaminants at vastly higher levels over a long period of time. Periodic exceedances of the exceptionally cautious standards are of no consequence, particularly since exceedances were on the order of one to a few parts per billion. Of note, bottled water still meets an even more stringent standard on this point. Unlike EPA regulations for tap water, bottled water companies are not expected to meet the standard on average. They must meet it with every single sample. That makes FDA standards more stringent in this respect.

Finally, environmental activists also suggest that bottled water testing is insufficient compared to tap water regulations. NRDC notes that tap water regulations require local governments to test for bacteria and chemical contaminants far more often than bottled water companies. But there are good reasons for these differences. Tap water must be tested frequently because it source and delivery system mean it is much more likely to become contaminated. Indeed, tap water often comes from surface water sources and then travels through pipes. Moreover, when you consider the volume of water tested, bottled water receives more testing per gallon of water.

Given that bottled water largely meets or exceeds federal tap water standards, there is little reason to fear. In fact, the next section shows that bottled water quality is often higher than tap water quality and that it suffers less often from dangerous contamination problems.

The most disturbing trend is the use of this issue as an excuse to levy a new tax. That is what the City of Chicago has done. It applies a tax of five cents per bottle of water, regardless of size. Each bottle in a case is taxed separately, which means for the typical case of 24 bottles costing about $3.99, the tax comes to about 30 percent.

Chicago officials have used the hype about bottled water’s adverse impact on the environment as an excuse to enrich city coffers and help cover considerable shortfalls. But they would have had a better chance of meeting their goals of a balanced budget if they had cut spending instead. According to news reports, the tax is bringing in about half of what the city projected. Apparently, city residents would rather cross into the suburbs to buy tax-free bottled water.

In fact, stores just outside the city say they are seeing increased sales of bottled water. One store reported a 20 percent increase in sales of bottled water by the case. A Sam’s Club employee told the press: “It increased pretty well especially since we’re right across the street (from Chicago).” “There’s no reason someone is gonna pay $1.20 extra for a $4 dollar case of water when they can go to the suburbs to buy it without that,” David Vite, president of the Illinois Retail Merchants Association, pointed out in a press report. (Fran Spielman, “Bottled Water Tax Take Falls Far Short Trickle Could Contribute to More City Cuts,” Chicago Sun Times, June 19, 2008, 7)

Jim Tobin of the National Taxpayers United of Illinois notes in a letter to the editor some pitfalls of Chicago’s new tax. He points out that the city is collecting much less than expected because people leave the city to shop where there are lower taxes. He notes, when residents go outside the city to buy cheaper bottled water, they also buy other items. As a result, the economic effects for Chicago are bigger than simply losing bottled water sales. Tobin points out further that it hurts supermarkets, convenience stores, and employment. (See: Jim Tobin, “Bottled Water Tax a Failure,” Chicago Sun Times, June 24, 2008, 20.)

In January 2008, the International Bottled Water Association and several other trade groups filed a lawsuit to challenge this silly tax, seeking to have the tax voided on the grounds that bottled water is a food item. The city lacks the authority to tax food items according to state laws. The trade group also contends that the bottled water tax violates the state’s constitution, which includes a clause prohibiting lawmakers from singling out a specific product for a tax while ignoring similar products. Since the tax excludes bottles containing soda, sparking water, and the like—these groups claim the law violates this uniformity clause. Other plaintiffs include the Illinois Retail Merchants Association, the Illinois Food Retailers Association, and the American Beverage Association.