View Did Not Agree with the Supreme Court’S Broadened Interpretation “Interstate Commerce” After 1942.21

‘WE HAVE DRUNKEN OUR WATER FOR MONEY’: THE POLITICAL ECONOMY OF BOTTLED WATER, 1940-1995

SAMUEL P. DUNCAN

Submitted in partial fulfillment of the requirements

For the degree of Master of Arts

Thesis Adviser: Theodore Steinberg

Department of History

CASE WESTERN RESERVE UNIVERSITY

August, 2010

CASE WESTERN RESERVE UNIVERSITY

SCHOOL OF GRADUATE STUDIES

We hereby approve the thesis/dissertation of

______

candidate for the ______degree *.

(signed)______(chair of the committee)

______

(date) ______

*We also certify that written approval has been obtained for any proprietary material contained therein. Table of Contents

I. Introduction ...... 5

II. Establishing the Dichotomy: Bottled Water vs. Tap Water...... 12

III. Regulation of the Market, for the Market, and by the Market...... 26

IV. Conclusion ...... 47

V. Bibliography ...... 50

List of Figures

Figure Page

1 U.S. Bottled Water Consumption Per Capita (in gallons), 1976‐2007……………… 7

2 Industry Sales (Dollars) 1961‐1996………………………………………………………………… 25

3 Industry Sales by Producer Size, 1995‐1996……………………………………………………. 45

List of Tables

Table Page

1 FDA Regular Testing for Drinking Water Contaminant Standards ...……...... 36

2 Definitions for Bottled Water Labels...... 40

‘We Have Drunken Our Water for Money’: The Political Economy of Bottled Water, 1940‐1995

Abstract

SAMUEL P. DUNCAN

The evolution of the bottled water industry from the 1940s to the mid‐1990s often reflected larger cultural, political, and economic changes, such as a bourgeoning environmental movement and the rising influence of neoliberalism in America’s political and economic structures. This thesis seeks to explore the history of bottled water within the context of these larger changes by examining the federal government’s role in the rise and success of the industry. In some instances, the choices of regulators and legislators affected consumer behavior by reinforcing the perception of bottled water as a pure alternative to the tap. In other instances, their actions produced market structures that favored the increased commodification of water by externalizing the production and environmental costs onto the consumer. The political economy of bottled water, therefore, helps explain the industry’s success in a country where nearly everyone has cheap access to safe, clean water.

‘We Have Drunken Our Water for Money’1: The Political Economy of Bottled Water, 1940‐1995

I. Introduction

In 2006, Fiji Water launched an advertising campaign with the tag line, “The label says Fiji because it’s not bottled in Cleveland.” The Cleveland Water Department promptly retaliated and conducted a comparative analysis of Fiji water and Cleveland tap water. The study revealed that the sample of Fiji water contained 6.31 micrograms of arsenic per liter, while Cleveland’s tap water revealed no measurable arsenic content.

The bottled water company’s clever quip had them eating crow. Even though Fiji president John Cochran publicly questioned the validity of the results, the company quietly pulled the ad the following week.2

The Fiji ad and the Cleveland Water Department’s reaction to it revealed the

competitive relationship between bottled water and tap water. That relationship was neither natural, nor inevitable. Although the commercial sale of bottled water in the

United States dates to the 1840s, its emergence as a product that directly competed against tap water is a far more recent phenomenon. In the nineteenth century, bottled water appealed to interests of health and vitality, but the availability of relatively clean, safe, cheap public water made bottled water an irrelevant consumer choice for many

Americans in the early twentieth century. Citizens did, on occasion, purchase bottled water as a means of avoiding the potential bacteriological contamination of some public

1 Lamentations, 5:4. 2 Olivera Perkins, “Don't Tread on Cleveland Water Fiji Ad Wisecrack Prompts Quality Test,” The Cleveland Plain Dealer, July 19, 2006; Olivera Perkins, “Fiji Water Swallows Its Pride, Pulls Ad,” The Cleveland Plain Dealer, July 28, 2006.

water supplies that led to outbreaks of cholera, typhoid, and other illnesses, but the widespread introduction of chlorine to municipal systems significantly reduced the threat of these afflictions by the 1930s.3 Consequently, chlorine nearly eliminated the

relatively small segment of the bottled water industry that marketed their product as

the safe alternative to tap water. More frequently during this earlier time period, the

appeal of bottled water depended on its cachet among consumers. Bottlers often marketed the product as an element of fine living or branded it in a way that praised its medicinal properties. In both cases, the appeal was linked to the long tradition of health spas that accompanied mineral waters. Disposable money and time limited the spa experience to elites, but by bottling the waters of their resort springs, companies such as Poland Spring, Saratoga, Mountain Valley, and others transformed a luxury item into a product with mass appeal.4 Throughout the first half of the twentieth century, bottled water remained a niche health product, not a rival to public water, and therefore appealed only to a rather small segment of the population. By the 1960s and 70s, however, an increasing number of Americans were drinking bottled water to supplement or even replace tap water. In the thirty years between 1976 and 2006, per

3 Martin V. Melosi, The Sanitary City: Environmental Services in Urban America from Colonial Times to the Present, Abridged. (Pittsburgh: University of Pittsburgh Press, 2008), 223; Frank Chapelle, Wellsprings: A Natural History Of Bottled Spring Waters (Rutgers University Press, 2005), 15‐16. 4 For a discussion of the appeal of emulating the consumption practices of elites, see Thorstein Veblen, The Theory of the Leisure Class, Oxford World's Classics (New York: Oxford University Press, 2007) especially chapter four on "Conspicuous Consumption"; Chapelle, Wellsprings, 39‐40,118; David L. Richards, Poland Spring: A Tale of the Gilded Age, 1860‐1900 (University of New Hampshire Press, 2005).

capita consumption of bottled water in the U.S. rose dramatically from 1.63 to 27.66 gallons a year (Figure 1).5

U.S Bottled Water Consumption 1976‐2007 35.00

30.00

25.00

20.00

15.00

10.00

5.00

0.00

annual per capita consumption in gallons

Figure 1. U.S. Bottled Water Consumption Per Capita (in gallons), 1976‐2007

Only a handful of authors have attempted to tell the story of bottled water, and they typically portray the industry’s rapid and successful growth as a marketing coup – a narrowly conceived tale in which producers manipulate naïve consumers through clever advertising. These works approach the subject with little regard for an historical perspective, ignoring how and why the market structures that govern the industry are created and changed over time, and to what consequence. For instance, the most notable example of this literature, Elizabeth Royte’s Bottlemania: How Water Went on

5 United States Department of Agriculture, Economic Research Service, “ERS/USDA Data ‐ Food Availability (Per Capita) Data System: Food Availability Spreadsheets,” Data Sets (Beverages), February 1, 2010, http://www.ers.usda.gov/Data/FoodConsumption/FoodAvailSpreadsheets.htm#beverage; Natural Resource Defense Council, “Bottled Water: Pure Drink or Pure Hype?,” March 1999, http://www.nrdc.org/water/drinking/bw/bwinx.asp.

Sale and Why We Bought It, offers a host of personal anecdotes and a synchronic examination of local disputes over property rights and the impacts of groundwater pumping, but it provides no answer to the book’s original subtitle (which has subsequently changed to “Big Business, Local Springs, and the Battle Over America’s

Drinking Water”).6 Some other works include only brief discussions of bottled water within the context of an activist literature opposed to current water‐use practices and the privatization of water resources, but they do so in only the most vague and general terms without addressing the historical development of the laws and regulations that apply to the bottled water industry.7

Missing in these works is an analysis of the relationship between state power and the market structures that frame the industry, or any sense of how public perception and administrative policy both influenced and were influenced by one another. The actions and choices of law makers and regulators are essential and

6 Elizabeth Royte, Bottlemania: How Water Went on Sale and Why We Bought It, 1st ed. (Bloomsbury USA, 2008). 7 In Frank Chapelle's Wellsprings, the author attempts an historical perspective, but not a particularly satisfying one. Chapelle attributes the success of bottled water to the industry’s ability to provide consumers with choice, variety, and quality. Yet, he has nothing to say about how those choices are constructed and have been perceived. He does a reasonable job of describing the variations in spring waters and the geologic processes that create such water sources, but provides only the broadest of historical contexts, leading him to make statements such as, “It is the history of human society, and the natural history of particular waters, that explains the allure of bottled water” (p.17) ; In Maude Barlow and Tony Clarke's, Blue Gold: The Fight to Stop the Corporate Theft of the World's Water (New York: New Press, 2002), the authors include a chapter that discusses bottled water as an example of privatization and the corporate take‐over of the world’s freshwater resources; Tony Clarke's, Inside The Bottle: An Expose of the Bottled Water Industry, Revised. (Ottowa: Canadian Centre for Policy Alternatives, 2007) presents a more detailed picture of the present bottled water industry, but makes no attempt to follow the historical path that led to the current state of affairs; Both Robert Glennon and Cynthia Barnett have at least mentioned bottled water in relation to the problem of America’s dwindling freshwater supplies and the ecological consequences of groundwater usage. Robert Jerome Glennon, Water Follies: Groundwater Pumping And The Fate Of America's Fresh Waters (Washington, D.C.: Island Press, 2004); Cynthia Barnett, Mirage: Florida and the Vanishing Water of the Eastern U.S. (Ann Arbor: University of Michigan Press, 2008).

heretofore virtually ignored aspects of the rapid growth of the bottled water industry.

While it is true that the public’s perception of bottled water’s superior quality greatly contributed to the industry’s success, the bottled water industry did not create that perception from whole cloth. Rather, that perception resulted from a complicated interaction between manufacturers, consumers, and government. Policy makers, legislators, and regulators reinforced the marketing efforts of the industry by validating, either implicitly or explicitly, the consumption of bottled water as a desirable alternative to public water and restructured the market to favor corporate interests. The state, therefore, was integral to the development and success of the bottled water industry in

America.

Any discussion of the expansion and impact of this industry in the late twentieth century must therefore include a discussion of political economy of bottled water. 8 The extraction, processing, distribution, marketing, and sale of bottled water do not take place in a vacuum. These processes take place within market structures that are created and maintained by politicians, regulators, and administrators who are themselves influenced by larger social and political forces. Tracing the historical development of these market structures and identifying the agents of their design is essential to understanding the character of the bottled water industry in the late twentieth century.9 Including the role of the state as a contributing agent of this history is

8 By “political economy” I am referring to the relationship between law, government, production, consumption, and culture. More specifically, the term is used here to refer to the social and political structuring of market relations. 9 This is not to say that the socio‐political structuring of the market is the entire story. There are certainly other aspects to the history of bottled water consumption in America. However, not wishing to engage in what historian David Hackett Fischer has called “The Baconian fallacy,” in which one attempts the

9 important because, “If we wish to understand the ecological consequences of our own lives,” explains William Cronon, “– if we wish to take political and moral responsibility for those consequences – we must reconstruct the linkages between the commodities of our economy and the resources of our ecosystem.”10 As “linkages” between water as a resource and water as a commodity, lawmakers and regulatory agencies participated in constructing the popularity and profitability of bottled water through specific choices; those choices, intentional or not, bestowed an air of superior purity and quality upon bottled water products and created a legal framework that reinforced and intensified the commodification of water. In both instances (establishing perception and structuring the market), the history of bottled water mirrored both the underlying assumptions and the mechanisms of neoliberalism, what Noam Chomsky has referred to as “the defining political and economic paradigm of our time.”11

Neoliberalism refers to a political and economic strategy that employs state power to structure market conditions favorable to business or corporate interests.12 As

“impossible object” of knowing “everything about something,” I have limited the focus here to the more realizable goal of the historian, “to know something about something” – namely the state’s role in shaping the character of the bottled water market (David Hackett Fischer, Historians’ Fallacies: Toward a Logic of Historical Thought, p.5). 10 William Cronon, Nature's Metropolis: Chicago and the Great West (New York: W. W. Norton, 1991), xviii. 11 Noam Chomsky, Profit Over People: Neoliberalism and Global Order (New York: Seven Stories Press, 1999), 7. 12 I am using the term “neoliberalism” as an analytical term to describe a certain set of ideas and strategies primarily concerned with the organization and regulation of markets in such a way as to maintain corporate autonomy. The term has been used differently in the early 1980s to designate a political movement, but this use has given way to the manner in which I am currently utilizing it (for examples of the way in which the term is now used see David Harvey, A Brief History of Neoliberalism (Oxford, UK: Oxford University Press, 2005); Joel Bakan, The Corporation: The Pathological Pursuit of Profit and Power (New York: Free Press, 2004); Noam Chomsky, Profit Over People; Ted Steinberg, Down to Earth: Nature's Role in American History, 2nd ed. (New York: Oxford University Press, 2009), chapter 16 and Acts of God: The Unnatural History of Natural Disaster in America, 2nd ed. (New York: Oxford University Press, 2006), chapter 9. Consistencies still remain in the usage, however. In “A Neoliberal’s

historian Ted Steinberg has pointed out, inherent in this strategy is the idea that

“private initiatives are by their very nature better than public solutions at addressing humanity’s needs.”13 This idea was the central theme of the confrontation between the

Cleveland Water Department and Fiji Water, and has been pervasive throughout the recent history of bottled water. The choices of consumers, the advertising of the industry, and the actions of the government give witness to the influence, in varying degrees, of the constituent ideas of neoliberalism. In the 1960s and 70s, affection for commerce and a growing mistrust of public services were vitally important factors that contributed to how consumers perceived of bottled water. However, the industry did not reflect neoliberal principles in mere abstraction. By the 1990s, the mechanisms of neoliberalism – the active use of state power to create market conditions favorable to corporate interests – shaped many of the most significant changes in the industry, including its consolidation and extractive methods. Those mechanisms have also placed vital freshwater resources and the ecosystems that depend upon them at the mercy of market demands, paying little attention to the demands and realities of the biophysical world or to the flagrant exploitation of life’s basic necessities.

Manifesto,” The Washington Monthly (May 1983), editor Charles Peters (who claims he coined the term) describes neoliberalism as a political movement that retains the traditional goals of liberals – “justice and a fair chance for all” – but abandons the prejudices of that group, declaring, “We no longer automatically favor unions and big government or oppose the military and big business” (p.9). Instead of automatic or ideological responses, Peters claims that this new liberalism seeks only “solutions that work,” and extends beyond partisan lines (p.9). Peters notes that risk‐taking entrepreneurs are the heroes of the neoliberal movement. Likewise, in its use as an analytical term of political economy, neoliberalism describes the creation of market structures which encourage risk by amplifying business interests’ ability to shed or externalize costs. 13 Theodore Steinberg, Down to Earth: Nature's Role in American History, 2nd ed. (New York: Oxford University Press, 2009), 283.

II. Establishing the Dichotomy: Bottled Water vs. Tap Water

Of the many factors that contributed to the changing character of the bottled water industry in the latter half of the twentieth century, the regulatory choices and market structures resulting from federal efforts to safeguard the nation’s food and water supply are generally the most overlooked and least explained. The ways in which regulators interpreted and enforced their authority set conditions that affected later developments important to the bottled water industry. Those conditions originated in the language of the 1938 Food Drug and Cosmetic Act (FDCA), which expanded the Food and Drug Administration’s authority beyond the limitations of the previous Food and

Drug Act of 1906.14 According to the definitions promulgated within the 1938 law, the term “food” included any item used as “food or drink for man or other animals,” while

“drug” referred to any article “intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals.”15 Yet neither of these

definitions could be uniformly applied to bottled water because bottlers often marketed their products as both a common drink and a curative agent.

In the early days of the FDCA, however, it was the bottled water companies that marketed their product as the latter that were far more likely to provoke a response from the FDA. For instance, In May 1940 an entrepreneur named Michael Lee shipped several cases of water from Oakland, California to Phoenix, Arizona, where his partner

14 Peter Barton Hutt and Peter Barton, II Hutt, “A History of Government Regulation of Adulteration and Misbranding Food,” Food, Drug, Cosmetic Law Journal 39 (1984): 62. 15 U.S. Food and Drug Administration, Federal Food, Drug, and Cosmetic Act. Sec.201. [21 U.S.C. 321] Definitions, http://www.fda.gov/RegulatoryInformation/Legislation/FederalFoodDrugandCosmeticActFDCAct/FDCAct ChaptersIandIIShortTitleandDefinitions/ucm086297.htm (accessed 2/20/2009), n.d.

Ned Johnson marketed the water as “Merlek Mineral Water.” As a product packaged for human consumption crossing state lines into interstate commerce, the product fell well within the FDA’s jurisdiction. In June, the FDA confiscated thirty cases of the product and filed a libel suit on the grounds that the water was misbranded in part because the label stated that “Merlek is sold only to help supply minerals for mineral deficiencies.”

The FDA regarded this as a “false and misleading” statement since Merlek “had the approximate composition of sea water,” which was apparently not efficacious by FDA standards in treating mineral deficiencies. The presiding judge in the Merlek case noted that “Under the law, this water can be considered both a food and a drug.” It obviously met the FDA definition of a “food”, but since the label and accompanying marketing materials indicated its usefulness in “the treatment and prevention of mineral deficiency diseases of the human body,” Merlek also had to meet the requirements of a

“drug” – namely, that it worked to the effect advertised. The jury found that the claims lacked merit according to the latter criteria and ruled in favor of the FDA.16

The FDA could have filed suit on the grounds that calling the product “mineral water” constituted misbranding, but without an established definition for that term there was no clear violation of the law. Prosecuting based on the product’s violation of the FDA’s definition of “drug” rather “food” was more effective due to the differences between what constituted “misbranding” in each case. Essentially, when a food label did not reflect the common name of the contents within, or when those contents failed to meet an established standard of identity (legal definitions of a product’s characteristics

16 United States v. 32 ½ Cases of Merlek Mineral Water (D. Ariz. 1940), U.S. Food and Drug Administration, Notices of Judgment Under the Federal Food, Drug and Cosmetic Act, Drugs and Devices, no.513, 259‐262.

and constituent ingredients), it was considered misbranded under the law. Without a

clear standard of identity for a product, it would have been difficult to successfully argue that a particular product was misbranded or misleadingly labeled. By contrast, deciding whether or not a drug violated the law was largely a matter of its efficacy. If a product claimed to cure gout, then it had to cure gout. Otherwise, it was mislabeled.17 Although

the FDA had the authority to establish standards of identity for food products since

1938, they neglected to establish such standards for bottled water (and they would not until decades later). Therefore, in the early years of the FDCA, suits against bottled water companies tended to relate more to violations of the law as it pertained to drugs rather than food, presumably because these were the violations that the FDA had clearly defined and were more likely to prosecute with confidence.

In addition to Merkel Mineral Water, the FDA prosecuted no less than thirty‐five bottled water companies for making misleading medicinal claims about their products between 1940 and 1960.18 The names of these companies included some of the oldest, most widely distributed brands, such as Poland Spring and Mountain Valley (which had both started their operations in the mid‐nineteenth century), as well as a number of smaller bottlers. These companies often advertised their waters as a panacea for a host

17 U.S. Food and Drug Administration, Federal Food, Drug, and Cosmetic Act Sec. 403. [21 USC §343] Misbranded Food, http://www.fda.gov/RegulatoryInformation/Legislation/FederalFoodDrugandCosmeticActFDCAct/FDCAct ChapterIVFood/ucm107530.htm (accessed 7/10/2009); U.S. Food and Drug Administration, Federal Food, Drug, and Cosmetic Act Sec. 502. [21 USC §352] Misbranded Drugs and Devices, http://www.fda.gov/RegulatoryInformation/Legislation/FederalFoodDrugandCosmeticActFDCAct/FDCAct ChapterVDrugsandDevices/ucm108061.htm (accessed 2/20/2009). 18 U.S. Food and Drug Administration, Notices of Judgment Under the Federal Food, Drug and Cosmetic Act, Drugs and Devices; U.S. Food and Drug Administration, Notices of Judgment Under the Federal Food, Drug, and Cosmetic Act, Foods.

of human ailments. Poland Water, for instance, claimed to be “effective in the treatment of illnesses regarded as incurable,… heart trouble, artery and kidney changes,… headache, depression, nausea,… difficulties involving the functioning of the kidneys, prostate gland, or urinary passages.”19 Likewise, Mountain Valley labels declared that drinking their product was “an adequate and effective treatment for kidney disorders… arthritis, rheumatism,” and “chronic fatigue.”20

This early establishment of enforcement standards for bottled water is important for two reasons. First, by applying their enforcement efforts primarily on the medical claims of bottled water, the FDA set a low priority on adopting standards of identity or quality standards that could be used to regulate bottled water as a food product. Second, the FDA only prosecuted products that passed over state lines, and therefore entered into interstate commerce. This was a strict interpretation of the commerce clause, however, and although applicable in early cases (like that of Merlek

Mineral Water), such a view did not agree with the Supreme Court’s broadened interpretation “interstate commerce” after 1942.21

These were important pre‐conditions that shaped the character of the bottled water industry in the last quarter of the twentieth century. By narrowly interpreting what constituted “interstate commerce,” the FDA allowed the great majority of bottled

19 U.S. Food and Drug Administration, Notices of Judgment Under the Federal Food, Drug and Cosmetic Act, Drugs and Devices no.1874, 209. 20 Ibid., no. 6023, 27. 21 Thomas W Merrill, “Toward a Principled Interpretation of the Commerce Clause,” Harvard Journal of Law & Public Policy 22 (1998): 35, note 19 Professor Merrill traces this broader interpretation of the Commerce Clause to the Supreme Court's decision in Wickard v. Filburn, 317 U.S. 111 (1942). This decision recognized the authority of Congress to regulate not only transactions that directly crossed state lines, but also matters that affected interstate commerce indirectly, regardless of the specific geography of a particular transaction.

water companies in America to go unregulated or regulated only by the states in which they operated. The early choices made by the FDA meant that the federal government abdicated its responsibility to regulate bottled water, leaving the authority to do so with state and local governments. Furthermore, without clear standards of identity, even the bottlers who did ship their products across state lines operated in a sort of regulatory limbo. Manufacturers could bottle any type of water and call it spring water, artesian, glacier, or any other appealing adjective since the FDA never established what characteristics defined those terms. In the 1940s and 50s, therefore, the federal enforcement of bottled water regulations really only amounted to the regulation of unwarranted medical claims.

By the 1960s, however, the frequency of suits filed against bottled water brands on the basis of medicinal claims dropped precipitously, all but vanishing from the FDA’s judicial record. We might imagine at least three possible explanations for this occurrence. First, the FDA changed its standard and no longer judged the specific medicinal claims as a violation of the FFDCA. Second, medical science verified these claims as true. And third, bottlers developed a new strategy and ceased to market their product as a panacea for a host of ailments. It is unlikely that the FDA no longer interpreted marketing that declared bottled water’s ability to treat certain illnesses as a violation, since the agency continued to take a decisive position against other products, like nutritional supplements, for the same type of unsubstantiated health claims.22 Nor

22 Marion Nestle, Food Politics: How the Food Industry Influences Nutrition and Health, California studies in food and culture (Berkeley: University of California Press, 2002), 236‐8 In the case of nutritional supplements, however, the FDA attempted in 1966 to pass standards of identity and labeling

16 is there any evidence that the medical community validated bottled water as an effective treatment for rheumatism, diabetes, gout, kidney disorders, or any of the other ailments that earlier advertisements identified.23 There is, however, ample evidence that indicates a significant change in the marketing strategy of the industry.

In the 1960s, bottled water advertisements positioned the product not as an effective remedy for specific illnesses, but rather as an element of healthy living more generally. For instance, in 1963, rather than making the traditional claims that their water constituted a cure‐all for a number of conditions, Mountain Valley began emphasizing the general healthfulness and purity of their water. Although the company no longer made direct medical claims about the product, they began to co‐opt emerging medical advice that urged some at risk people to restrict dietary sodium intake.

Mountain Valley assured customers with such dietary restrictions that their doctors “will welcome MOUNTAIN VALLEY WATER as a part of your low sodium diet,” and “because it is so palatable, doctors know this renowned water will encourage patients to consume enough water (so necessary for good health).”24

requirements that stated, "there is no scientific basis for recommending routine use of dietary supplements." The lack of such an effort to establish clear standards for bottled water reflects a particular viewpoint from which the character of water is assumed to be self‐evident. 23 Tedious searches in the New England Journal of Medicine, Journal of the American Medical Association, and the American Journal of Medical Sciences for the relevant time period revealed no acceptance of bottled water’s medicinal claims. 24 Advertisement, Mountain Valley Water, “If You're On a Low Sodium Diet...,” The Washington Post, Times Herald, November 11, 1963; Richard Vilter and Carl Thompson, “Nutrition and the Control of Chronic Disease: Public Health Aspects,” Public Health Reports 66, no. 1951 (n.d.); Beth Heap, “Sodium Restricted Diets,” The American Journal of Nursing 60, no. 2 (February 1960): 206‐209 Beth Heap was the chief nutrition consultant with the Heart Disease Control Program of the U.S. Public Health Service in 1960. According to her article, American Heart Association began publishing three different pamphlets to be distributed in doctors’ offices in 1958. These pamphlets (Your 500 Milligram Sodium Diet, Your 1000 Milligram Sodium Diet, and Your Mild Sodium Restriction) instructed patients, especially those prone to heart problems, to lower their intake of sodium. .

In addition to changing dietary concerns, many brands also capitalized on a growing public awareness during the 1960s and 70s regarding environmental toxicity and chemical pollutants. Great Bear bottled water promised “no flat chemical” taste, and in 1968 Mountain Valley ran full page ads that read:

I see by the papers that Lake Erie is called a ‘dead’ lake. Pollution is fierce in Lake Michigan. There’s concern about other Great Lakes…and smaller lakes, too. River waters are getting worse and worse. Pesticides and other things are everywhere. Maybe it’s time for me to drink a bottled water – a really good water, like Mountain Valley.25

Another Mountain Valley advertisement described the company’s efforts to offer

pure water to its customers by sealing their source spring under a glass dome so that

“not even air pollution can affect the precious water.”26 Meanwhile, Deer Park Water nostalgically lamented, “Today’s over‐crowded pollution‐plagued America is a far cry from those peaceful days” when President Grover Cleveland honeymooned at the springs. Yet the company proudly boasted that the “virgin forests” and pristine waters of Deer Park escaped this degradation, and the only change since that eloquent age gone by was that one no longer had to travel to Deer Park to enjoy the “cold, clean water that pours forth from the spring in an everlasting flow.”27 The bounty and vitality

of nature was available for home delivery.

25 Advertisement, Great Bear Water, “Get Great Bear Water Today,” The Washington Post, May 11, 1967; Advertisement, Mountain Valley Water, “I See by the Papers,” The Washington Post, Times Herald, November 5, 1968. 26 Advertisement, Mountain Valley Water, “The One and Only,” The Washington Post, Times Herald, January 22, 1973. 27 Advertisement, Deer Park Water, “The Truth About the Water We Drink,” The Washington Post, March 25, 1971.

Such ads reflected larger concerns about environmental pollution, and the effect that pollution was having on the nation’s food and drinking water. This nascent environmental movement influenced changes in the federal government’s management of the country’s water supply systems.28 In 1962 the Public Health Service amended federal primary drinking water standards to meet these new problems. From 1914, when the PHS first adopted drinking water standards, until 1962 the greatest concern for public health officials regarding drinking water quality remained bacteriological contamination.29 In drafting its new standards, however, the PHS acknowledged “the growing problems created by technological advances,” noting that pollution of drinking water from nuclear waste, chlorinated hydrocarbons, and organophosphate insecticides presented a significant threat to human health. For the first time, the 1962 drinking water standards set limits for radiological and synthetic chemical contaminants.30

These new drinking water standards did not apply to bottled water, however, and there is no evidence that the FDA ever considered adopting similar criteria for bottled water at this time. Although the historical record offers little or no conclusive

28 The concern over chemical pollution at this time was both reflected in and inspired by the 1962 publication of Rachel Carson's Silent Spring. Environmentalism, however, originated from a number of other circumstances. Adam Rome's, The Bulldozer in the Countryside: Suburban Sprawl and the Rise of American Environmentalism (New York: Cambridge University Press, 2001) demonstrates that the environmental movement and the public's concern about their drinking water were not merely reactions to Rachel Carson, nor was concern limited exclusively to chemical pollution. Rome explains how a sprawling suburban lifestyle contributed to modern concerns about drinking water standards. According to him, dating back to the late 1940s, septic tanks (the technological hallmark of early suburbia) often failed or were emplaced with little regard to soli permeability, proximity to drinking water wells, or capacity to meet rising consumption demands. As a result of septic tank failures, the division between waste water and drinking water in the suburban households of the 1950s could be a tenuous one. So according to Rome, the process of suburbanization factored into public concerns about safe drinking water. 29 Earlier amendments were passed in 1925 and 1942. Frederick W. Pontius, Drinking Water Regulation and Health (New York: Wiley and Sons, Inc., 2003), 16‐17. 30 United States. Public Health Service, Public Health Service Drinking Water Standards, 1962nd ed. (Washington: G.P.O., 1962); Pontius, Drinking Water Regulation and Health, 16‐17, 622.

explanation for this oversight, there are number of possibilities and reasonable

inferences one can make based on the evidence that is available. It is possible, for instance, that administrators assumed a certain level of purity in bottled water, or that the product was not considered a practical source for the drinking water needs of the public, or that the FDA questioned their legal jurisdiction and authority under the

“commerce clause”. Whatever the rationale, by not holding bottled water accountable to the same standards applicable to tap water, the FDA may have inadvertently suggested to consumers that bottled water did not need such regulations because of its superior quality. In practice, such implied superiority translated into consent for the type of advertisements that questioned the quality of municipal water systems and positioned bottled water as a purer alternative to tap.

The FDA’s inaction benefitted bottled water manufacturers by contributing to a particular image of the product, yet the government’s contributions to the public’s perception of bottled water were not entirely passive. State action, as well as inaction, had important consequences. For instance, in 1970 the bottled water industry’s image

(and its sales) received an unexpected boost when the PHS published the results of its

Community Water Supply Study.31 The study evaluated 969 community water suppliers

serving 18.2 million U.S. citizens. These were chosen according to various geographic

locations, water sources, and size in order to create a representative sampling of

31 U.S. Environmental Protection Agency, Water Supply Division, Bottled Water Study: A Pilot Survey of Water Bottlers and Bottled Water (U. S. Environmental Protection Agency, 1972), 1; Nancy Ross, “Quenching a Thirst for Good Water,” The Washington Post, Times Herald, November 29, 1970, 1; David Cook, “More Water Flowing from Bottles,” The Washington Post, June 28, 1973, 1. Quantification of the impact of the study on bottled water sales is difficult to assess, since the USDA Economic Research Service only began tracking bottled water sales in 1976. The statement here is based on the EPA's own statement in its survey of bottled water, as well as the reports of David Cook and Nancy Ross .

American public water systems. The PHS found that forty‐one percent of the sampled systems failed to meet federal drinking water standards. Twenty‐five percent of them exceeded at least one “recommended” limit, and sixteen percent exceeded

“mandatory” limits for harmful substances.32

The media quickly picked up on the report, noting that sales of bottled water were booming. ABC Evening News reported that the growing popularity of bottled was due in large to public distrust of tap water. Bottled water customers interviewed by ABC claimed that they purchased the product primarily because of their concern about public water supplies. “When my small son’s fish died in the tank,” said one woman,

“and my little bird gets sick when I fill his water holder with tap water, I realized something was wrong.” “Does the bird prefer bottled water?” asked ABC’s economic editor Louis Rukeyser. “Oh definitely, he sings all the time,” said the woman.

Bottled water sales in the U.S. increased 50 percent between 1967 and 1971, due in no small part to the growing divide in the minds of consumers about the purity of bottled water versus that of tap water. This division existed even though the PHS survey found that seventy‐five percent of the more than 19,000 water systems in the nation used groundwater as a source – a source bottled water companies took pride in claiming.33 This growing assumption of the superiority of bottled water did not go unquestioned, however. Regulating the safety of the nation’s drinking water became the jurisdiction of the newly created Environmental Protection Agency (EPA) in 1970,

32 U.S. Public Health Service, Bureau of Water Hygiene, Community Water Supply Analysis of National Survey Findings (Washington, D.C.: G.P.O., 1970), i‐ii. 33 Ibid., 3.

and agency officials recognized that the booming bottled water business was an important development deserving of their attention. In order to determine “the quality and health surveillance being provided by the manufacturers,” the EPA decided to conduct a pilot survey of the bottled water industry in 1972. The study found that one‐ third of the bottled water manufacturers in the U.S. drew from municipal sources, demonstrating the distance between reality and perception.34

In November and December of 1974, the bottled water industry received another boost when all three major television networks reported on studies conducted by the EPA and the Environmental Defense Fund that linked the process of chlorination to the formation of cancer‐causing substances in drinking water. The EPA originally noted the presence of these substances in 1972, but the public’s reaction remained muted until Consumer Reports republished the findings in June 1974. The public outcry then prompted the EPA to conduct a second study, which the networks picked up on in

November.35

The study focused primarily on New Orleans, whose citizens drew their drinking water from the Mississippi River. Although the EPA itself made no claim as to the cause of the carcinogenic substances found in New Orleans’ water, separate investigations in

34 U.S. Environmental Protection Agency, Water Supply Division, Bottled Water Study: A Pilot Survey of Water Bottlers and Bottled Water, 1. 35 “Mississippi River Drinking Water/Cancer,” NBC Evening News (NBC, November 7, 1974), Vanderbilt Television News Archive, http://tvnews.vanderbilt.edu/program.pl?ID=474475; Walter Cronkite, “EPA / Water Study,” CBS Evening News (CBS, November 8, 1974), Vanderbilt Television News Archive, http://tvnews.vanderbilt.edu/diglib‐ fulldisplay.pl?SID=20100301849761962&code=tvn&RC=232277&Row=257; “EPA / Drinking Water Study,” ABC Evening News (ABC, November 8, 1974), Vanderbilt Television News Archive, http://tvnews.vanderbilt.edu/diglib‐ fulldisplay.pl?SID=20100301849761962&code=tvn&RC=29524&Row=259; T. A. DeRouen and J. E. Diem, “The New Orleans Drinking Water Controversy: A Statistical Perspective,” American Journal of Public Health 65, no. 10 (October 1975): 1080.

Cincinnati and in Holland attributed their formation to the use of chlorine in water treatment.36 According to these and later studies, chlorine reacts with organic

compounds in the water (especially surface waters) to form what are chemically known as trihalomethanes – compounds that contain one carbon atom and three halogen atoms, usually bromine or chlorine. The most common of these disinfection by‐products is chloroform, a known human carcinogen.37

When the media reported the findings, the bottled water industry reaped the benefits. Great Bear Spring Company manager Robert McClearly told the Washington

Post, “We have a tremendous backlog of orders and the phones have been coming off the wall.” A Mountain Valley employee also noted a marked increase in incoming calls from people “worried about cancer,” and asking for price quotes. At a Giant

Supermarket outside of Washington, D.C., the price of the house brand of bottled water rose from 65 cents per gallon to $1.15 in one day, and one local store owner in Bethesda reported a 25 percent increase in sales following the report, almost all from bottled water.38 And in a revealing moment during a special report on America’s drinking water aired by CBS, cameras panned over cases of bottled water in the offices of the very same New Orleans officials who were downplaying the EPA report.39

36 “Mississippi River Drinking Water/Cancer.” 37 Cincinnati Oh US Environmental Protection Agency, National Center for Environmental Assessment, Exposures and Internal Doses of Trihalomethanes in Humans: Multi‐Route Contributions from Drinking Water (Final), 2006, 52, http://cfpub.epa.gov/ncea/CFM/recordisplay.cfm?deid=153303; B. Rahman et al., “Disinfection By‐products in Drinking Water and Colorectal Cancer: A Meta‐analysis,” International Journal of Epidemiology (2, 2010), http://ije.oxfordjournals.org/cgi/reprintsidebar/dyp371v1?&frameset_url=http%3A%2F%2Fije.oxfordjour nals.org%2Fcgi%2Freprint%2Fdyp371v1 (accessed 1/12/2010); Sandra Marquardt et al., Bottled Water: Sparkling Hype at a Premium Price (Washington, D.C.: Environmental Policy Institute, 1989), 52. 38 Douglas Feaver, “Cancer Talk Spurs Bottled Water Sales,” The Washington Post, November 14, 1974. 39 John Carmody, “And Not a Drop To Drink,” The Washington Post, December 5, 1974.

The threat of cancer aroused by the EPA report in New Orleans was indicative of the kind of fears that influenced consumer behavior. Another influential factor, also taking place in 1974, was the passage of the Safe Drinking Water Act. Despite the

General Accounting Office’s warnings to Congress that the FDA had had been negligent in its regulation of bottled water, Congress decided to leave the product under the jurisdiction of the FDA rather than giving the EPA the responsibility for regulating all drinking water, including the kind that came in a bottle.40 As a consequence, the rules that applied to tap water did not apply bottled water, even though the public clearly assumed a level of qualitative superiority for bottled water. Whereas EPA required third‐party testing and public notification of standards violations, the FDA had no such requirements. The FDA left testing largely up to the bottlers themselves, and even if a company found their own product in violation of drinking water standards, they had no legal obligation to report those findings.41

This divergent regulatory path resulted in an even deeper cleavage between the

public perceptions of bottled water vs. tap water. Whenever the EPA passed new contaminant standards, they experienced a lag time between the promulgation of new standards and the time it took municipalities to bring their systems into compliance.

During this lag time, reports of violations contributed to the public’s doubts and fears about tap water. So, there emerged a strange paradox where, even as regulations

40 The General Accounting office was known as such until 2004 when the agency was renamed the Government Accountability Office. 41 U.S. Congress. Senate, Safe Drinking Water Act of 1973: Hearing Before the Subcommittee on Environment of the Committee on Commerce on S. 433, 93rd ed. (Washington: U.S. G.P.O., 1973), 178‐ 181; United States, 25 Years of the Safe Drinking Water Act: History and Trends (Washington, D.C.: G.P.O., 1999), 4‐6; Marquardt et al., Bottled Water: Sparkling Hype at a Premium Price, 10.

expanded to improve the quality of tap water, the public image of it suffered and the bottled water industry reaped the benefits. The massive number of violations reported in 1979, for instance, coincided with the EPA’s adoption of maximum contaminant level standards for trihalomethanes, which also coincided with a sharp increase in the trend of bottled water sales (Fig.2).42

Industry Sales $ (Millions) 1961 ‐ 1996 * relative to the 1996 consumer price index 3,500.0 3,000.0 2,500.0 2,000.0 1,500.0 1,000.0 Trend Line 500.0 0.0

Figure 2. Industry Sales (Dollars) 1961‐1996

By the close of the 1970s, therefore, bottled had evolved from a niche product found primarily in office water coolers or drug stores into a viable primary source of drinking water for many Americans. Despite the FDA’s acknowledgment that bottled water was no purer or safer than tap water and that approximately one‐third of the industry drew their water from public sources, consumers still seemed to accept the

42 United States, 25 Years of the Safe Drinking Water Act, 19; Marquardt et al., Bottled Water: Sparkling Hype at a Premium Price, 6; Beverage Marketing, Bottled Water in the United States (New York, N.Y: Beverage Marketing Corporation, 1997); FIND/SVP (Firm), The U.S. Bottled Water Market: Revolution and Growth, A Business information report (New York, N.Y: The Clearinghouse, 1979), 30.

superiority of bottled water as a given truth. The FDA accepted this perception as well by choosing not to take action against marketing that implied the product’s superiority and by interpreting their legal jurisdiction more narrowly than Supreme Court precedence supported, leaving vast segments of the industry essentially unregulated.

The process that drew bottled water into direct competition with tap water, therefore, was one significantly influenced by the decisions of regulators and legislators. Their choice to exempt water in bottles from the same standards applied to water delivered through pipes was a choice of non‐action that favored private over public interest – commodity over resource. In many ways these changes are part of a history of unintended consequences. Over the next two decades, however, the consequences of state action were far from unintended, and the decisions of regulators further embedded neoliberal principles into the regulatory structure of the bottled water industry.

III. Regulation of the Market, for the Market, and by the Market

Neoliberalism is an economic and political philosophy rooted in reactions to the politically interventionist economic organization of the New Deal (an economic organization that came to be known as embedded liberalism). These reactions took many different forms, however. For example, Shane Hamilton has demonstrated how a new class of independent truckers emerged as a result of New Deal agricultural policies, and that these truckers spearheaded the movement toward the deregulation of the

trucking industry that occurred under President Jimmy Carter in the 1970s.43 In contrast

to Hamilton, Kim Phillips‐Fein’s Invisible Hands links the rise of neoliberalism (although she calls it “the economic agenda of the conservative movement”) to a network of

American business activists working to self‐consciously promote free market ideals in the wake of the New Deal. These men even arranged for economist Friedrich von Hayek to come to the University of Chicago in 1948 and paid his salary for the next decade.44

Hayek had been defending the strategy of “liberating” capital from the restraints of government regulation since the 1930s. He and other proponents of this strategy envisioned a resurrection of classical liberalism for the modern age (hence a “new liberalism”), but the economic stability and apparent success of New Deal policies left little room for such a resurrection. That changed, however, with the global economic crisis of the 1970s, which was characterized by high unemployment and high inflation (a situation dubbed “stagflation”). The inability of Keynesian influenced economic policies to deal with stagflation created an inroad for policies based on the principles of neoliberalism. The failure of the status quo helped legitimize and make popular neoliberal strategies championed earlier by influential economists from the University of Chicago like Hayek and Milton Friedman. In the mid 1970s, both Hayek and Friedman won Nobel Prizes in economics, signifying a growing acceptance of the tenants of neoliberalism as a means of resolving the problems that the then‐current economic

43 Shane Hamilton, Trucking Country: The Road to America's Wal‐Mart Economy (Princeton: Princeton University Press, 2008). 44 Kim Phillips‐Fein, Invisible Hands: The Making of the Conservative Movement from the New Deal to Reagan (New York/London: W.W. Norton, 2009), ix‐xii, 42. Phillips‐Fein does not refer to her actors as neoliberals primarily because they did not refer to themselves as such, but she acknowledges that the subjects of her study did believe and act on the principles that define neoliberalism.

paradigm failed to alleviate. The election of Margaret Thatcher to prime minister of

Great Britain in 1979, followed by Ronald Reagan’s election to the U.S. presidency the following year, signaled the ascendency of two political regimes intensely dedicated to free market principles. Their administrations pursued fervent deregulation and privatization consistent with the core of neoliberal imperatives, so that by the 1990s, as

Joel Bakan points out, “neoliberalism had become economic orthodoxy.”45

That orthodoxy included relinquishing economic oversight to non‐democratic

organizations that extolled the virtue of free markets, such as the World Trade

Organization (WTO), International Monetary Fund (IMF), the Federal Reserve, and the

World Bank. People and institutions sympathetic to neoliberal ideas championed the supremacy of market incentives over planned state initiatives, enthusiastically highlighted the failures of public services, and aimed to dismantle many social welfare programs at home and abroad. The US Agency for International development (USAID), for instance, worked with the IMF and World Bank in a number of areas, including Haiti, parts of South America, and Africa to encourage structural adjustment programs, essentially using financial aid as a way of enticing countries toward increased privatization and rolling back social welfare policies. Many of these programs resulted in greater poverty and dependence on foreign investment and aid, as was the case for

Haitian rice cultivators in the 1980s. Through these foreign development projects, both

45 Harvey, A Brief History of Neoliberalism, 19‐22, 52; Bakan, The Corporation, 21.

governments and corporations in the U.S. and Britain became global neoliberal evangelists.46

American bottled water companies reinforced the neoliberal gospel in a variety of ways. Aside from capitalizing on the divergent regulatory schemes of the FDA and

EPA, as well as the declining public perception of tap water that reified purity in bottled water, industry leaders participated in programs designed to encourage privatization of water resources. In 1981, former president of the American Bottled Water Association,

E. Austin Hess, spent three months in Indonesia as a member of the International

Executive Service Corporation (IESC). The IESC was the brainchild of David Rockefeller, president of Chase Manhattan Bank, and Sol M. Linowitz, the chairman of Xerox Corp.

They formed the organization in 1964 with the mission of "Promoting stability and prosperity through private enterprise development" and received (and still receives) funding and support from the State Department, Department of Agriculture,

Department of Defense, and the USAID, all of which have been integral to neoliberal projects across the globe.47 While serving in Indonesia, Hess consulted a bottling operation in Jakarta, the P.T. Golden Mississippi Company, which produced a brand of mineral water unoriginally called AQUA. He advised the company executives, helping them figure out where and how to create new bottling plants. He provided assistance to advertising agents, devising a campaign to promote the product while simultaneously casting aspersions on the quality of Jakarta’s municipal water. And he also trained

46 Chomsky, Profit Over People, 107‐9. 47 International Executive Service Corps, “Mission & History,” IESC, January 17, 2010, http://www.iesc.org/iescwebsite2.nsf/0/4BC76B85D8241225852575060074868F?OpenDocument.

company executives to use the HesOne ozone filtration system – a system not surprisingly manufactured by Hess’s namesake company, Hess Machine International in

Pennsylvania.48

The partnership between the bottled water representatives and organizations like the IESC, taken together with that organization’s link to government agencies like the USAID or the State Department, is but one example of the extent to which the principles of neoliberalism influenced the relationship between the industry and government. The legislation and regulations of the 1990s are further, albeit more subtle examples of how this relationship articulated those principles.

A turning point for the FDA and the regulation of bottled water occurred in 1990 when President George H.W. Bush signed the Nutrition Labeling and Education Act

(NLEA) into law that November. Throughout the late 1980s, the FDA sought to resolve many of the discrepancies that plagued their labeling standards. Labeling standards lacked cohesiveness and represented what Dr. David Kessler (who took the reigns as

FDA Commissioner in 1990) called a “50‐year‐old patchwork” of food labeling rules that were “the result of politics, not science.”49 For instance, only two‐thirds of the nation’s food packaging listed nutrient contents on labels at this time; approximately one third provided nutritional information because of federal requirements, while another third

48 “ABWA Past President Serves as International Consultant,” Bottled Water Reporter, May 1981, 27; International Executive Service Corps, “Mission & History.” 49 Nestle, Food Politics, 249.

did so voluntarily. The remaining third provided practically zero nutritional information.50

As the FDA moved to rectify labeling inadequacies, they encountered resistance from the White House that brought regulatory reform to a standstill. Like the previous administration of Ronald Reagan, the Bush administration eschewed preemptive federal regulations as much as possible, using the Office of Management and Budget as a tool to disarm regulators.51 In 1988, for example, the budget office strenuously objected to

labeling changes proposed by the FDA which would have established more stringent requirements for food products that made health claims on their packaging. According to Shannah Koss‐McCallum, an official working within the office, those objections took the form of “advice” that would have been “hazardous to ignore.”52 Many in Congress, like New York’s Democratic Representative Ted Weiss, sharply criticized this type of heavy‐handed influence over FDA policy, claiming that such tactics effectively

“neutered” the agency.53

The inability of the FDA to promulgate meaningful revisions to food labeling standards frustrated other congressmen, as well. Henry Waxman, the Democratic

Representative from California, felt that the FDA should have been doing a better job of regulating health claims in food packaging. Frustration, however, not only plagued legislators and consumers, but many segments of the food industry as well. Numerous

50 Ibid. 51 Eric F Greenberg, “Changing Food Label: The Nutrition Labeling and Education Act of 1990,” Loyola Consumer Law Reporter 3, no. 1 (Fall 1990): 13. 52 Philip J. Hilts, Special To The New York Times, “Panel Says White House Delayed Effort to Curb Food Health Claims,” The New York Times, November 15, 1990, http://www.nytimes.com. 53 House Democrat Ted Weiss quoted in Ibid.

state labeling requirements complicated the packaging and marketing operations of food producers. Therefore, the legislators and consumer protection agencies calling for stronger federal regulations in food labeling found themselves allied to the food industry itself. Key to the interests of the industry was the preemption of state and local regulations by a more uniform system of federal requirements that streamlined the market. Thus, the NLEA supposedly represented a “win‐win” for consumers and the food industry because it prohibited States from adopting standards of identity or labeling requirements that differed from federal standards.54

Federal preemption of state and local bottled water standards did not take effect

immediately following the passage of the NLEA, however. Congress identified six clauses

of the FDCA that, in their view, required further study. One of the clauses under consideration, Section 403(i)(1), addressed the possible misbranding of a product with regard to its common or usual name. In addition to bottled water, cider, citrus, honey, milk, seafood, maple syrup, olive and vegetable oils, oriental noodles, pine nuts, poi, vidalia, and wild rice were all products in question under this section. Many state and local governments had already established regulations that surpassed FDA standards regarding these items. Congress therefore directed the FDA to have a third‐party agency conduct a study to determine whether the current federal regulations were adequate to warrant preemption or if state and local laws should be exempted until the FDA could establish new rules. The FDA delegated the task of conducting this study to the Institute

54 Greenberg, “Changing Food Label,” 13; Nestle, Food Politics, 249‐50.

of Medicine (IOM), an organization chartered in 1970 by the National Academy of

Sciences to serve in an advisory capacity to government.55

After two years of investigating the issue, the IOM found that the federal regulations for bottled water lacked sufficient merit to warrant immediate preemption of state laws. Without standards of identity for the various types of bottled water, and given the patchwork of state laws that varied from region to region, the IOM identified the need for a strong federal regulatory scheme, but recommended preemption only after the FDA promulgated new standards that addressed the failings of the old. To that end, they urged the FDA to consider the Association of Food and Drug Officials’ 1984 model code for bottled water (which included standards of identity) as an example.56

Although there is no indication that the IOM realized it at the time, the suggestion that the FDA use this model was actually a suggestion that the bottled water industry set its own regulations since it was the IBWA who had actually drafted the AFDO model and had for several years pressured the FDA to adopt those standards.57

While the IOM was still conducting its study, the bottled water industry came under even closer congressional scrutiny, precipitated by the recall of 160 million Perrier bottles in February 1990. Internal company testing found samples of the product contaminated with benzene, a known carcinogen, at levels five times the federal limit

55 Institute of Medicine (U.S.), Food Labeling: Toward National Uniformity, ed. Donna Viola Porter and Robert O Earl (Washington, D.C: National Academy Press, 1992), ii, 1‐2, 11. 56 Ibid., 216‐7. 57 Association of Food and Drug Officials, “1986 Amendment to 1984 AFDO Model Bottled Water Code,” June 25, 1985; William Deal, “The Bottled Water Market: An Update,” Bottled Water Reporter, March 1984, 17.

set by the EPA for safe drinking water.58 According to Perrier, the benzene contamination resulted from the saturation of its carbonic gas filtration system. In an open letter to fellow members of the International Bottled Water Association, Ron

Davis, President of Perrier Group of America, explained, “Due to human error this saturation was not detected in time, allowing minute quantities of benzene to pass into the product during bottling.”59 Although Perrier voluntarily initiated the worldwide recall, the incident cast doubt on the industry and garnered the attention of the U.S.

Congress. The House Committee on Energy and Commerce, led by Michigan

Congressman John Dingell, commissioned an investigation of the bottled water industry and its regulation, and after a year of studies and reports from the General Accounting

Office, FDA, EPA, and the International Bottled Water Association (IBWA), the committee held oversight hearings in April 1991.60

Although the Perrier recall helped instigate the hearings, the veteran water bottler was not the only brand in the congressional crosshairs. That same year at least nine companies operating in the United States recalled twenty‐two different bottled water products. The reasons for the recalls included mold, yeast, benzene, kerosene; in

58 Ron Davis, “An Open Letter to the IBWA Membership,” Bottled Water Reporter, May 1990, 46; U.S. Congress. House, Bottled Water Regulation: Hearing Before the Subcommittee on Oversight and Investigations of the Committee on Energy and Commerce, 102 Congress, 1st sess., April 10, 1991 (Washington, D.C.: G.P.O., 1991), 1. Benzene is a naturally occurring compound that is commonly used as an industrial solvent. 59 Davis, “An Open Letter to the IBWA Membership,” 46. Perrier’s sparkling mineral water does not sparkle on its own; the water and the carbon dioxide are naturally occurring, just not together. The gas and liquid are drawn separately from underground sources in Vergeze, France. The gas is then filtered and then added to the water during the bottling process. 60 Thomas McCarroll, “Testing the Waters,” TIME online archive, April 26, 1993, www.time.com (accessed 2/12/2009); U.S. Congress. House, Bottled Water Regulation, 1‐3..

one case rubbing alcohol was labeled and sold as distilled water.61 Despite the

industry’s claims that they had an effective self‐regulatory program, the committee’s investigation found that nearly one‐third of the bottled water products failed to meet safe drinking water standards were IBWA members.62 To Dingell, it appeared as if the

internal efforts of the industry were unable to compensate for the “significant inadequacies in FDA’s regulation of bottled water.”63

The hearings revealed that the FDA’s regulation of bottled water was negligent in areas of monitoring, testing, and labeling. John Harman of the GAO told Congressman

Dingell and the other committee members that the FDA had consistently failed to comply with EPA standards for drinking water. According to the Safe Drinking Water Act, whenever the EPA established new health‐based standards for drinking water, the FDA had to adopt similar standards for bottled water within 180 days, or publish the reason for not doing so in the Federal Register. The GAO found that the FDA had not fully met this requirement since 1976.64 Not only had the FDA neglected its duty to match the

EPA’s criteria for maximum contaminant levels, they rarely tested for those that they did adopt. According to the FDA’s own bottled water survey in 1990, conducted in the interim between the Perrier recall and the Congressional hearings, the agency regularly tested for only nine of the thirty‐one contaminants for which they had standards (Table

1).65

61 U.S. Congress. House, Bottled Water Regulation, 18. 62 Ibid., 2‐3. 63 Ibid., 1. 64 Ibid., 37. 65 Ibid., 95‐6.

Number of Standards Number FDA Regularly Established Tested

Inorganic 18 5

Organic 7 1

Radiological 2 2

Physical (odor, turbidity, color) 3 0

Microbiological 1 1

Total 31 9 Table 1. FDA Regular Testing for Drinking Water Contaminant Standards

The FDA’s Director of the Center for Food Safety and Applied Nutrition, Dr. Fred

Shank, claimed that the lack of testing was a matter of resource constraints. Yet, Shank quickly changed his reasoning when pressured to explain what additional resources the agency required. Instead of arguing that the lack of testing resulted from inadequate resources, he instead proposed that it was essentially unnecessary to test for all regulated substances and that in designing the agency’s survey tests the FDA made a conscious decision not to test for all regulated contaminants. “I don’t think we need to look at the total universe to understand the total universe,” Shank told Congressman

Dingell.66 He proposed that the presence of some substances were indicators of others, thereby making individual testing for every substance unnecessary. This had certainly been the case with monitoring bacterial contamination in drinking water. The PHS had traditionally used the presence of coliform bacteria in drinking water as an indication that other pathenogenic microorganisms might also be present.67 Shank’s explanation,

66 Ibid., 96. 67 27 Federal Register 44 (March 6, 1962): 2153‐4.

however, failed to convince the committee. "I don't read that this [testing for 9 of 31 standards] constitutes a situation where you are doing the amount of testing that you really should to assure public safety,” said Dingell, “or that you have the necessary number if indicators here which would tell you that you are carrying out a sufficient sweep of tests to assure you that the commodities that you are testing are, in fact, safe in the marketplace."68 Shank replied by implying that the 1990 study might be too small to make broad conclusions, but when the committee asked him if he was arguing that the survey was not representative of FDA behavior, Shank quickly abandoned that tactic. He merely acknowledged that the agency had some problems to address and assured Congress that they were working on new testing protocol.69

In addition to the testing criteria, committee members also found the FDA’s monitoring requirements problematic. Not only had the FDA abdicated its responsibility for testing and failed to keep pace with contaminant standards set by the EPA, but apparently personnel in the FDA’s compliance department only rarely laid eyes on test results. The GAO found that although the FDA required bottlers to keep tests on file for

2 years, officials only visited the plants an average of once every 5.75 years to catalog the results. Shank’s explanation for this was twofold: First, the FDA lacked jurisdiction to oversee a large portion of the industry because most operations bottled and sold their product in the same state. In this respect, the FDA demonstrated inaction consistent with the agency’s earlier, limited interpretation of “interstate commerce.” That interpretation represented a departure from the precedent set by the Supreme Court in

68 U.S. Congress. House, Bottled Water Regulation, 96. 69 Ibid., 97.

Wickard v. Filburn in 1942, and demonstrated continuity in the agency’s behavior and understanding of its own role.70 In other words, the limited jurisdiction of the FDA was set by choice, not by law. The second part of Shank’s explanation was that bottlers themselves conducted most of the tests kept on hand in their facilities, and therefore the results on file usually contained very little information that could be of use to federal inspectors. Shank’s explanation was hardly comforting since the implication was that these tests lacked sufficient information concerning contaminant levels, additives, packaging materials and procedures, lot numbers, or source approval documentation.71

Neither were the committee members comforted by the absence of standards of identity for bottled water. Congressman Dingell questioned the ability to regulate bottled water without defining the product. “A water manufacturer could pull water right out of a tap,” he said, and “put it in his bottle, and mark it as bottled water.”72 This,

the FDA had to admit, was exactly the case for about 25 percent of the industry. Shank assured the committee that bottled water was safe and a low‐risk product. The FDA could still regulate the safety of bottled water without standards of identity, he claimed, based on its authority to take action against the presence of any substance harmful to human health. Shank also noted that the bottled water industry received attention from both state and federal regulators.73

In light of the facts at hand, however, Shank’s assurances seemed hollow. The

IOM study and the congressional oversight hearings laid bare the bottled water

70 see note 23. 71 U.S. Congress. House, Bottled Water Regulation, 37, 88. 72 Ibid., 101. 73 Ibid., 61‐4.

industry’s old line that “no other drinking water is so highly regulated.”74 Although it

was true that the law required bottled water to meet minimum contaminant level standards set by the EPA and adhere to the rules established by the FDA, it became apparent that this dual regulation existed in name only. The FDA had consciously disregarded its obligation to adopt EPA standards, failed to effectively monitor product testing, and continually ignored the need to establish standards of identity for bottled water – standards that were designed to protect consumers from misleading advertising and marketing. Despite Shank’s dogged defense of the existing regulations and the quality of bottled water products, however, the FDA began drafting new regulations in earnest following the hearings, most likely in an effort to avoid Congressional legislation proposed by Congressman Dingell and New York Senator Daniel Patrick Moynihan.

According to the president of the IBWA, avoiding legislative action was admittedly the reason the IBWA had pressured the FDA to pass stronger regulations for bottled water since 1989.75

As required by law, the FDA published their proposed rule changes in the Federal

Register in January 1993 and allowed six months for public comment and consideration before finalizing the regulations. During this period, lobbyists, individual owners and operators, concerned citizens, scientists, and local and state government officials voiced their opinions concerning the new rules which were nearly identical to the model proposed by the industry and adopted by the Association of Food and Drug Officials in

74 Deal, “The Bottled Water Market: An Update,” 17. 75 U.S. Congress. House, Bottled Water Regulation, 189‐93. President of the International Bottled Water Association, William F. Deal, told the committee that the industry would work with the FDA to expand federal regulation, "thereby not requiring any legislative moves."

1984.76 For the first time, these rules included standards of identity for the various types of bottled waters: spring water, artesian water, purified water, mineral water, and sparkling bottled water (see Table 2). Of the more than four hundred comments the FDA received, most dealt with the definitions of these various waters, particularly the new standard of identity for spring water.77

Definitions for Bottled Water Labels Type Definition Artesian Water Water from a well tapping a confined aquifer in which the water level stands at some height above the top of the aquifer. Mineral Water Water containing not less than 250 ppm total dissolved solids that originates from a geologically and physically protected underground water source. Mineral water is characterized by constant levels and relative proportions of minerals and trace elements at the source. No minerals may be added to mineral water. Purified Water Water that is produced by distillation, deionization, reverse osmosis or other suitable processes and that meets the definition of "purified water" in the U.S. Pharmacopeia, 23d Revision, Jan. 1, 1995. As appropriate, also may be called "demineralized water," "deionized water," "distilled water," and "reverse osmosis water." Sparkling Bottled Water that, after treatment and possible replacement of carbon dioxide, Water contains the same amount of carbon dioxide that it had at emergence from the source. Spring Water Water derived from an underground formation from which water flows naturally to the surface of the earth at an identified location. Spring water may be collected at the spring or through a bore hole tapping the underground formation feeding the spring. Table 2. The FDA’s definitions for the types of bottled water that appear on labeling.

The new rule defined “spring water” as “water that is derived from an underground formation from which water flows naturally to the surface of the earth.”78

The FDA also included, at the suggestion of the IBWA, the allowance of borehole

76 Association of Food and Drug Officials, “1986 Amendment to 1984 AFDO Model Bottled Water Code.” 77 58 Federal Register 2 (January 5, 1993), 393‐407. 78 58 Federal Register 2 (January 5, 1993), n.d., 398.

extraction in the definition, with the provision that the water pumped from the borehole must be of the same chemical composition of the water that naturally discharges from the spring. The agency acknowledged that many geologists and hydrologists did not accept the notion that water pumped in this method should legitimately be called “spring water,” but nevertheless acted in favor of the industry.

Their justification for including borehole extraction reflected two false premises. First, that the use of a borehole was more sanitary than collecting the water where it emerged from the earth; second, that this inclusion was consistent with the AFDO

Model Bottled Water Code. With regard to the latter, the model code to which the FDA referred actually defined “spring water” as “water that is taken from a natural orifice in the ground without external force or vacuum.”79 On this point, the FDA clearly misrepresented the facts.

The premise that borehole tapping was more sanitary also neglected certain facts and advice. John Gaudlip of Gaudlip Engineering Incorporated, an engineering firm in Pennsylvania specializing in hydraulics and hydrology, commented on the proposed regulations stating, “It is my opinion that the use of a bore hole does not reduce the possibility of contamination, but rather increases the possibility.”80 According to

Gaudlip, borehole tapping carried the risk of introducing contaminants into the water source itself. Drilling into the aquifer that fed a spring disturbed the natural water pressure and flow of groundwater, causing a lowering (drawdown) of the level around

79 Association of Food and Drug Officials, “1986 Amendment to 1984 AFDO Model Bottled Water Code.” 80 John Gaudlip, “Letter to Document Managements Branch, Food and Drug Administration,” February 19, 1993.

the hole and reversing the flow of water heading to the surface back toward the hole. In such a process pollutants at or just below the surface could be pulled back into source, contaminating any water pumped from it. This represented a greater danger than the pollution of water as it naturally surfaced due to the quantity of water, and therefore the amount of product, subjected to contaminants. Gaudlip also claimed that in his experience it was rare to tap into an underground spring source with a single hole.

Multiple attempts were often necessary to “effectively intercept the spring flow,” and every borehole drilled created an added entry path for contaminants.81

Although the FDA attempted to portray their decision as a function of precedence and safety, the arguments for the potential cost savings for bottlers appeared far more prominently in the proposed regulations. The agency devoted almost two entire pages in the Federal Register to the economic benefits for producers, whereas the two previously discussed justifications warranted only a couple of paragraphs. Based on industry assessments, the FDA determined that federal standards of identity could potentially save bottled water manufacturers $35 million in labeling costs over the next twenty years. Accounting for the compliance costs associated with enacting the new regulations and industry estimates for the labeling costs resulting from the differences in state regulations, the FDA projected the net benefits to be $14 to $17 million for manufacturers over a twenty year period, plus higher revenues from the resulting increases in interstate commerce.82

81 Ibid. 82 58 Federal Register 2 (January 5, 1993), 405.

The argument for the cost effectiveness of federal preemption demonstrated the

FDA’s deference to the bottled water industry’s opinion, but it also highlighted the consequences of decisions made decades earlier. Because of the FDA’s consistent reluctance to define the various types of bottled water in the past, many states adopted their own standards of identity which in some instances required different labels for the same product depending on the state where the water was sold. Without federally preemptive standards, water that qualified as “spring water” in one state might not qualify in another. For instance, in April 1993, while these new regulations were still under consideration, the North Carolina Department of Agriculture issued orders to remove Poland Spring and Crystal Geyser bottled water from grocery shelves throughout the state due to their “false and misleading labeling.”83 According to North

Carolina law, bottled water companies could only label their product as “spring water” if they collected the water where it emerged from the earth, unaided by mechanical pumps. The use of such methods in the Old North State required companies to label their product as “well water,” not a particularly appealing labeling choice.84 The industry needed a streamlined set of regulations to help eliminate the cost associated with the different state labeling requirements, hence their encouragement of stronger federal regulations that included borehole tapping in the standards of identity for “spring water.”85

83 McCarroll, “Testing the Waters.” 84 2 NCAC 9c .0702. 85 According to Theodore Steinberg, Acts of God: The Unnatural History of Natural Disaster in America, 2nd ed. (Oxford University Press, USA, 2006), 91, a similar process was involved in the federal preemption of mobile‐home manufacturing standards. Increased mobile home sales in the 1960s and 70s led to many states to adopt their own building codes and regulations for manufactured homes. When Congress

Despite many complaints from smaller manufacturers, scientists, and state

governments regarding the definition of “spring water,” the FDA published the final regulations in November 1995 without making any changes to the standards proposed in 1993. Then, with the borehole extraction method codified, the preemptive authority of the 1990 Nutrition Labeling and Education Act took effect, forcing the NC Department of Agriculture to repeal its ban and allow Poland Spring and Crystal Geyser to once again sell their product throughout the state. These new regulations heavily favored the interests of large producers with national distribution channels and even bigger multinationals like the Perrier Group (who, at the time, owned many popular American brands like Poland Spring, Mountain Valley, Arrowhead, and Deer Park). In fact, the FDA based its economic justifications for the new standards of identity primarily on reports from large scale producers. The only reference the FDA cited in its economic impact analysis was that of a communication between the agency and Quibell Corp., one of the most successful U.S. bottled water firms, distributing Appalachian spring water to twenty‐seven states, Japan, and the Middle East.86

The FDA claimed that the regulations would generate greater profits for the

entire industry and that the rules were not catering to the interests of a select segment of producers.87 However, removing or preempting regulatory obstacles to the so‐called free market, like the labeling standards set by state and local governments, had the

attempted to solve the problem of weak, inadequate state regulations in some instances (like in hurricane‐prone Florida), they inadvertently preempted stronger, more safety‐conscious codes, such as those in North Carolina. Both in the case of housing and bottled water, someone had to pay the price for a more efficient market, and it was not the manufacturers. 86 58 Federal Register 2 (January 5, 1993); David Wilkinson, “Water from Appalachia's Mineral Springs Sells Well,” The Washington Post, December 21, 1989. 87 60 Federal Register 218 (November 13, 1995), n.d., 57091.

dysfunctional result of squeezing out small entrepreneurs – the very individuals praised in neoliberal rhetoric. Because borehole extraction made it possible to pump water faster than the natural discharge capacity of the source spring, bottlers with more capital to invest in pumping equipment could capture more water with greater efficiency. With the labeling restrictions overturned by federal regulation, large scale operations also caught a break on distribution costs. The end result was that big bottled water companies could sell in greater volume at lower costs. Not surprisingly, the industry began to consolidate rapidly. In 1995, the largest companies (those with sales exceeding $50 million) made up 30 percent of total U.S. bottled water sales. The next year, following the new federal regulations, the market for these larger scale producers increased to 45 percent, making them the largest segment of bottled water manufacturers by dollar value. 88

Share of Industry Sales by Size of Producer

1,400,000,000

1,200,000,000 $

1,000,000,000 800,000,000 600,000,000 1995

Sales Volume 400,000,000 1996

200,000,000 0 Industry more the $50 million $5 ‐ 50 million less than $50 million Producers by Sales Volume

Figure 3. Industry Sales by Producer Size, 1995‐1996

88 Beverage Marketing, Bottled Water in the United States, 131.

The success of larger producers depended on an intensified process of commodification and the ability to externalize costs. Pumping faster than a spring’s natural discharge may have allowed greater efficiency in production, but the FDA gave little or no consideration to the ecological impacts of that practice. As John Gaudlip’s comments on the proposed rules indicated, borehole pumping causes a disruption of the spring’s natural flow, reducing the amount of water flowing to the surface. A reduction in the discharge of springs affects the watersheds that those sources feed and the ecosystem supported by those watersheds in a number of ways. For instance, stream temperatures are often regulated by groundwater discharge, and the slightest reduction of that flow can raise temperatures, devastating fish populations by interrupting their spawning process.89 The FDA, however, considered the ecological consequences of their regulations on the non‐human world unrelated to any impacts they may have had for humans. The agency determined that their rules did not “individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.”90 It is unclear how the FDA determined that the new regulations had negligible environmental consequences without conducting an environmental assessment or impact statement, but the implication was that neither the government nor the industry should bear the environmental cost of bottling water. It was a classic expression of neoliberalism, externalizing costs onto the public to bear.91

89 Glennon, Water Follies, 6. 90 58 Federal Register 2 (January 5, 1993), 404. 91 Harvey, A Brief History of Neoliberalism, 67. Harvey characterizes this externalization as the efforts of individuals and firms to "avoid paying the full costs attributable to them by shedding their liabilities outside the market." Donald Worster has convincingly made the point that this process is inherent in capitalist economies generally (see Worster's Dust Bowl: The Southern Plains in the 1930s), but to the

IV. Conclusion

The changes to bottled water regulations in 1995 exemplified what Nik Hynen and

others describe as “the consistent imperative that that runs through the history of neoliberization: to expand opportunities for capital investment and accumulation by reworking state‐market‐civil society relations to allow for the stretching and deepening of commodity production, circulation and exchange.”92 Yet, the phenomenon of bottled water consumption does not represent a conscious neoliberal agenda in every instance, but rather a vehicle by which the ideas of neoliberalism become further embedded into, as David

Harvey puts it, “the common sense way many of us interpret, live in, and understand the world.”93

Take, for instance, the 2007 debacle that took place at the University of Central

Florida’s brand new football stadium. During the first game played in the venue, more than

45,000 fans filled the seats in 97°F heat. Unfortunately, at least 16 of those fans were taken out of the stadium by ambulance and dozens more treated on the spot for heat related illnesses. The university built the facility without a single drinking water fountain, and because it posed a security risk in a post‐911 world, fans were not permitted to bring their own drinks into the stadium. All of this was in accordance with building codes which exempted venues from meeting the water provision requirement (one fountain per 1,000 seats) as long as bottled water was available. UCF did have bottled water available – only enough for about half the fans, and at $3 a bottle, but available. Even after the incident,

extent that neoliberalism is "capitalism with the gloves off," according to Noam Chomsky (Profit Over People), this externalization is amplified by neoliberal strategies. 92 Nik Heynen et al., eds., Neoliberal Environments: False Promises and Unnatural Consequences (London: Routledge, 2007), 10. 93 Harvey, A Brief History of Neoliberalism, 3.

university president John Hitt defended the decision to provide only bottled water saying,

“We believe then and believe now that it is a more effective way to handle the need, which is hydration.” Hitt’s words and the codification of his sentiments in the building code hint at

the extent to which neoliberal ideas have become embedded in the common sense reasoning to which Harvey refers.94

As the Florida incident helps illustrate, the consequences of neoliberal water have

important implications to the extent that the intimacy of consumption normalizes the

privatization and commodification of natural resources. When those resources include something as fundamental to human survival as water, understanding why and how this process takes place is paramount. To that end, there are a number of lenses through which one can examine bottled water in America and throughout the world. The subject can be approached through the aspects of culture that define and influence consumption. One could use the competition between bottled water and public water as a way to explore how groups of people perceive and assign risk. One could examine the conflicts over groundwater pumping to illuminate the motives, influences, and consequences of how property rights are defined in the United States, or one could look more carefully at the advertising and marketing strategies of producers as a way to understand the character of corporations in the modern age. All of these avenues of study are valid and necessary, and deserve further attention.

94 “UCF Stadium Getting Water Fountains After Opening Day Debacle ‐ News Story ‐ WFTV Orlando,” http://www.wftv.com/news/14144160/detail.html (accessed 5/21/2010).

However, examining the political economy of bottled water highlights some of the

structural underpinnings of the industry’s success missed by other approaches. Those structures, whether they are regulatory policies or legislative decree, are the result of choices and decisions made within particular contexts. Those contexts involved, at different times, public concerns about the environment and health, the economic goals and imperatives of the industry, the dynamics of unintended consequences, the political affiliations of policymakers and legislators, and the interpretation of legal authority. The collision between choices and contexts resulted in a regulatory and legislative framework that articulated the spirit of neoliberalism by maintaining the externalization of production costs, favored the free movement of commodities and capital, and implicitly supported the perceived superiority of private enterprise to public services. Although the relationship between state power and corporate interests informs many discussions about the privatization of public water systems, the absence of these relationships in discussions concerning the phenomenon of bottled water hints at what Noam Chomsky calls the “near sacred aura” of private enterprise and consumer choice in America – rhetoric that has been successfully employed to justify and make neoliberal policies more palatable.95

Reconstructing the historical trajectory of this relationship and identifying government’s

role as a link between resource and commodity better illuminates how and why “we have drunken our water for money.”

95 Chomsky, Profit Over People, 7.

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