10th September 2017
Is Arrowhead bottled water really spring water? Nestlé confronts questions as officials investigate
AS CALIFORNIA REGULATORS EXAMINE WHETHER NESTLÉ HOLDS WATER RIGHTS, THE COMPANY FACES QUESTIONS ABOUT WHETHER ITS BOTTLED WATER QUALIFIES AS ‘SPRING WATER’
Ian James, The Desert Sun
Nestled in thick brush high in the San Bernardino Mountains, bunker-like structures protrude from the rocky slopes. Built with stone and concrete and secured with metal doors and padlocks, these vaults are connected to a series of stainless steel pipelines that run down the mountainside like veins.
The food and beverage giant Nestlé uses this system, which includes boreholes and tunnels drilled deep into the mountainside, to collect water and pipe it out of the San Bernardino National Forest. The water is bottled and sold as Arrowhead 100% Mountain Springs Water.
Federal regulations, however, include strict requirements for bottled water that's labeled as “spring water.” And the top official at the national forest suggested recently in an internal email that Nestlé may not be complying with the regulations and that the Food and Drug Administration should look into it.
n the April 19 email, San Bernardino National Forest Supervisor Jody Noiron told other officials in her agency that an FDA counterpart would be “discussing this case w her upper managers.”
“FDA has full discretion on whether or not to followup on non-compliance issues like this, it’s a case by case basis,” Noiron said in the email. “Nestlé is non compliant w their labeling, lots to consider on their end. Their legal counsel may want to consult w our legal counsel.”
In a June 20 email, Anam Drumheller at the FDA provided Noiron with the name of “our legal counsel that will be working from FDA’s side on this issue.”
The emails were obtained in response to a request under the Freedom of Information Act by lawyers representing environmental groups, and were provided to The Desert Sun along with other documents.
The emails didn’t give details about why Nestlé was considered non-compliant or what exactly was being followed up on by the FDA.
Under federal regulations, the FDA defines spring water as water that “flows naturally to the surface of the earth.” The water may be collected at a spring or through a borehole tapping the underground source that feeds the spring.
Among other things, regulators may ask bottling plants to demonstrate that “an appropriate hydraulic connection exists between the natural orifice of the spring and the bore hole.”
The regulations also include another specific requirement: water must keep flowing “to the surface through a natural orifice.”
To investigate the matter, Desert Sun journalists spent a day visiting several of Nestlé's water sources on the mountainside, and there were no signs of any flowing water on the ground – just ferns, thorny bushes, granite boulders and dusty soil.
Some of the local activists who are opposed to Nestlé's use of water from the forest have begun questioning whether the company might be violating the federal regulations.
“There’s a big difference between a surface spring and groundwater. Either there’s a natural spring – surface water – or they’re taking groundwater,” said Amanda Frye, a Redlands activist who has urged state and federal authorities to shut down the pipelines in the national forest.
“There’s no spring naturally running,” Frye said, standing beside one of the company’s water-collection structures. “Nestlé is taking the forest’s groundwater.”
The Forest Service, however, has started taking a different position on the issue, at least publicly. When asked about the emails this week, Forest Service spokesperson Brandon Honig said: “Nestlé is currently compliant with FDA.”
Honig said Noiron wasn’t available for comment, and he didn’t have an explanation for the different position. When it comes to bottled water regulations, Honig said, officials at the FDA are the experts.
Deborah Kotz, an FDA spokesperson, said the agency cannot comment on or confirm any ongoing investigations.
As a general procedure, Kotz said, when the FDA learns about potential violations, the agency can initiate actions including warning letters, injunctions, seizures of products and prosecutions.
“Such action is handled on a case by case basis,” she said.
Nestlé Waters North America is the largest seller of bottled water in the country, with $4.5 billion in sales last year.
If the federal government were to rule against Nestlé Waters in a substantial way, huge sums would be at stake for the company. Nestlé has told the Forest Service that in addition to the millions of dollars it has invested in its water infrastructure, holding on to the Arrowhead brand is financially important.
Nestlé has told the agency that if it were to lose access to water from the national forest, that could have “significant market impacts” and could risk job losses among its 1,200 employees in California who are connected with the Arrowhead brand. The company has said water from the Arrowhead springs “may not be replaceable.”
Nestlé Waters North America, which is part of Switzerland-based Nestlé, said Arrowhead bottled water fully meets the FDA’s definition of spring water.
Nestlé Waters said no one at the company was available for an interview, but Larry Lawrence, the company’s natural resources manager in California, responded to emailed questions.
Lawrence said he led representatives of the Forest Service and the State Water Resources Control Board on tours of spring sources in Strawberry Canyon in December 2015 and June 2016, and “showed them, among other things, the points at which the various springs emerge.”
“Some of the water is collected in a collection system constructed at the location of the spring to capture it in a sanitary way, so obviously no one visiting the site would see water flowing on the ground at those locations,” Lawrence said. “Some of it is collected through boreholes tapping the same underground formation feeding natural springs, and we showed these springs” to Forest Service and State Water Board officials.
He said Forest Service regulators have visited the springs again, most recently in July.
“We only recently became aware that the Forest Service had any questions regarding the labeling of our Strawberry Canyon spring water under FDA’s standard of identity regulations,” Lawrence said. “We immediately provided the FDA with full information on the issue that had been raised. FDA reviewed the information and has now clarified for the Forest Service that FDA has no issue with the company’s continued labeling of the water as ‘spring water.’”
The issue of whether water piped from the forest legally qualifies to be sold as “spring water” could turn into yet another challenge for Nestlé as the company tries to keep its lucrative bottled water operation going in the national forest.
Last month, lawyers for two environmental groups – the Story of Stuff Project and the Courage Campaign Institute – filed a lawsuit accusing the FDA of failing to respond in a timely manner to their request for documents under the Freedom of Information Act.
Rachel Doughty, one of the lawyers representing the groups, said the FDA agreed to release hundreds of pages of documents and she expects to receive them this week. She said she knows a complaint was made but said it’s unclear what the documents will include.
California regulators have also spent more than a year investigating whether Nestlé holds valid water rights, and a separate trove of documents, released to The Desert Sun by the State Water Resources Control Board, shows the investigation is turning out to be complicated, with a great deal of back-and-forth between state officials and the company’s lawyers on its water rights claims.
Nestlé’s use of water from the national forest has sparked strong opposition and protests during the past two years after a 2015 Desert Sun investigation revealed that the Forest Service has been allowing the company to continue drawing water from the national forest using a permit that lists 1988 as the expiration date.
The Forest Service subsequently announced a review of the permit and in March 2016 released a proposal to grant the company a new five-year permit. The issue also prompted a federal lawsuit by environmental groups, which are appealing a ruling that allowed Nestlé to continue piping water out of the forest.
Activists have urged the Forest Service to crack down, arguing that taking water from the forest harms spring-fed Strawberry Creek and the wildlife that depends on it. Last year, Nestlé’s opponents submitted a petition that they said was signed by more than 280,000 people demanding the Forest Service carry out a “thorough and unbiased” environmental review.
...Continued in Part 2