Food Liability Law Blog : Food Safety and Liability Lawyer & Attorney : Stoel Rives Law Firm : Food Safety, Organic Food, Recalls

I spent the last three weeks mainly in Europe, and mainly on a cruise, but unlike Newt Gingrich, I don't purport to have learned anything about Europe's debt crisis, although the Greek, Italian and Spanish governments did all fall the moment we left each country.  What I did learn, or was reminded of, is that there is a very different way of thinking in Europe.  Instead of blaring out instructions at the security line at the airport, there is just one discreet sign, and if you don't do it right you are admonished for not having read or comprehended the sign.  To rebook our flights when we missed a connection due to fog, we were given the instruction to "Like" KLM on Facebook, without the further instruction to then post a message asking to be rebooked (that didn't work for me, by the way, after I finally figured it out). 

So I read with some interest the various stories that have circulated around the Internet with titles like "EU Says Water is Not Healthy" and "Now barmy EU says you CAN'T claim drinking water stops dehydration."  And this, of course, is to answer yesterday's pop quiz, which you'll recall asked if the following statement is true:

The regular consumption of significant amounts of water can reduce the risk of development of dehydration and of concomitant decrease of performance.

This was the question asked of a particular European Union agency with respect to a particular European Union law and the answer they gave was negative.  Which of course set off a firestorm of laughter and ridicule, followed by a reverse firestorm of alleged common sense explanations for why the EU was right.  With respect, pretty much everyone has exaggerated something here, intentionally or unintentionally. 

For reference, here are the EU Scientific Opinion and the EU regulation implementing the scientific opinion.  I'm afraid they're not quite Shakespeare or even Stephen King.

First, let's parse the words a bit.  The claim relates to "water" not "bottled water" or some particular brand of bottled water.  The claim also states that "regular consumption" of water "can reduce" the development of dehydration, not that it is necessary for it, or that other beverages or water ingested in other ways are or are not another way to achieve it. 

Now, let's affirm what the EU has done and not done.  It has stated that in connection with a claim for foods within the EU, this claim is not authorized (20 days after publication in the official journal of the EU).  It expressly states that it is "binding and directly applicable in all member states."  Thus, the EU official who stated, as quoted in The Express as saying, "Either way the final decision is for member states", was saying something directly contradicted by the regulation's own words.  A British bottled water seller has vowed to defy the ban and British health officials have not ruled out taking action against it. 

Clearly, the EU has also not said water isn't good for you, or that it's bad for you, or anything of that sort.  And there is some question as to whether the law the application was sent in under was the right one; is "dehydration" a disease or a condition, for instance?  Yet even the most cogent defense of the ruling I've read, by a professor of nutritiion at Robert Gordon University in Aberdeen, takes liberties with the facts.  I'm no nutritionist, and I'll accept that someone can live a perfectly healthy life without ever once ingesting water in its pure form (the comments on most of these articles include at least one person who suggests that beer is a fine substitute). I also accept that pure water alone may not solve all cases of dehydration.   But the claim is not that drinking water as such is necessary, or that it is sufficient, but that it is useful.  So when the professor, in defending the EU ruling, said, "Also, it could be used to imply that there is something special about bottled water which is not the case," he's simply wrong.  If I say that Drug X may lower your cholesterol that doesn't imply that there is something about Drug X that is special compared to Drug Y which may also lower your cholesterol.  The same is true of water. 

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The International Bottled Water Association (IBWA) is taking aim at an advertising campaign for Eco Canteen stainless steel water bottles, claiming the ads wrongly suggest that plastic water bottles are unhealthy and unsafe.

In a lawsuit filed in the U.S. District Court for the Western District of North Carolina, IBWA claims that Eco Canteen’s television ads and content on various Eco Canteen websites deceive the public into believing that single-serve and reusable plastic water bottles constitute a safety and health risk to consumers. Among other things, IBWA’s lawsuit alleges that some of Eco Canteen’s ads have:

• Improperly linked plastic water bottles to breast and prostate cancer and stated that plastic water bottles “could be poisoning you and your family”;
   
• Matched images of single-serve plastic water bottles with Eco Canteen’s claims “relating to an organic compound called Bisphenol A (BPA) with the intent to confuse consumers into believing that single-serve bottles also contain BPA even though they do not”;
   
• Conveyed false and misleading information regarding the alleged health risks of BPA; and
   
• Suggested that exposing certain water bottles to warm temperatures can lead to leaching of chemicals.
   

IBWA brings two claims against Eco Canteen: (i) a false advertising claim under the Lanham Act, 15 U.S.C. § 1125; and (ii) an unfair competition claim under North Carolina law. A copy of the complaint (including exhibits showing some of the Eco Canteen ads about which IBWA complains) is available here.

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