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Berkey sues the EPA!

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Berkey sues the EPA!

NMCL-EPA-Orig Complaint Front PageNew Millennium filed a lawsuit against the EPA this week, seeking to stop its unjustified persecution of Berkey water filters, based on the EPA’s decision this year to treat Berkey water filters as though they are pesticides.

Berkey’s gravity-fed water filters have dominated the market for more than a quarter of a century by removing harmful contaminants for household water use all over the planet. Berkey’s filter construction is a trade secret, but Berkey’s test results are not; Berkey’s mechanical process does not use chemicals to treat water.1

The EPA has been regulating pesticides since 1947, mostly through the Federal Insecticide, Fungicide, and Rodenticide Act.2 FIFRA is exactly what it looks like – a law that seeks to regulate chemical pesticides. 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.

As an administrative body, the Environmental Protection Agency does not make actual law; its authority is limited to creating rules, which enforce laws that are passed by Congress. As it is making rules, it is obligated to give notice of new rules and take input from those who will be impacted.

Berkey has not hidden from the EPA, and the EPA has never sought to regulate merely mechanical water filters…until last year, when the EPA decided to start regulating Berkey’s water filters as though they were pesticides without warning.

Though there was no notice or opportunity to discuss that issue, Berkey’s manufacturing facilities agreed to be treated as a treated article, because they do use silver to protect the filters themselves.

But that wasn’t enough. 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. This change in the rules is without notice or a shred of legal support. Berkey’s filters are not “substances or mixtures of substances intended for preventing, destroying, repelling, or mitigating any pest”, as FIFRA defines pesticides. Rather, they mechanical remove contaminates through a tortuous maze of micropores. 

NMCL and the family-owned trust that owns Berkey’s intellectual property and manufacturing authority, has engaged Norred Law to sue in federal court, and is seeking an injunction and other claims to push back on the EPA.

If the EPA wants to regulate gravity-fed mechanical water filters, it has a process to follow, at the very least. And during that time, the EPA should not be able to enforce its arbitrary decision and imperil the 500+ jobs which produce Berkey's filters. 

Berkey’s 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 EPA’s decision to persecute the market leader may well cause actual damage to consumers who the EPA is supposed to be protecting.

The case has been filed in the Northern District of Texas, in cause 4:23-cv-00826. Though Judge Means initially received the Original Complaint, he has assigned the case to Judge Pittman.

Berkey's full press release on the matter may be viewed HERE.

[1] Mechanical filtering refers to a water filter construction where contaminants are caught and removed by a tortuous maze of micropores in the filter.

[2] FIFRA, 7 U.S.C. ch. 6 § 136.