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[whitespace] Water Bottle Spring Flinging: The courts have ruled that companies drilling for water--miles from a spring--can still call their product spring water.

Photograph by George Sakkestad

Slime in A Bottle

Bottled water companies have been duping the public about 'spring water' for years, critics say. And the courts apparently don't care whether the public knows the truth or not.

By Justin Berton

IN 1980, BILL SULLIVAN QUIT his Bay Area city job, moved up north to serene Lake County and made a living--a good one--by bottling water that flowed freely from a nearby spring.

Five years later, when bottled water was still associated with the exclusively rich or extraordinarily stupid, Sullivan introduced common Americans to a novelty that would change the world: a half-liter plastic bottle of noncarbonated water. He was a genius, a man before his time.

Sullivan was also an honest businessman. The label on his product, Cobb Mountain spring water, read "spring water" because, by all chemical and geologic definitions, the water he bottled indeed came from a spring.

Cobb Mountain was a tiny operation, but maintained a whopping 10 percent share of the American noncarbonated water market. At the time, Evian water, imported from Europe, held the corner, and the Alhambra man, now making deliveries into suburban neighborhoods in pleasant television commercials, was makin' a lot of new friends.

Each year Sullivan worked his spring, he watched his water turn into liquid gold. Back when Sullivan started his business, Americans sipped about 400 million gallons of bottled water a year. By 1998, that number had increased, incredibly, to 3.77 billion gallons.

But the bum's rush had its casualties. All the mom 'n' pop water shops, like Calistoga and Arrowhead, the ones that dotted Northern California, were getting snatched up by the larger European water companies, like Perrier and Danone International. The Big Water companies came with big advertising campaigns and big technology to pump out water. Sullivan's Cobb Mountain never had a chance. They offered to buy him, too, but he declined.

In 1999, with his company struggling to survive, Sullivan noticed there was one major difference between the Perrier-owned Calistoga "spring water" and his Cobb Mountain spring water. It wasn't that Calistoga wasn't harvested in Calistoga--that fact was well known--but that it wasn't coming from a spring.

So, on behalf of just about every Californian who drank a bottle of noncarbonated Calistoga water since 1996, Sullivan lent his name to a class action lawsuit and sued Big Water. After two years of legal squabbling, and just before a trial date was set, lawyers for both sides agreed to a settlement. Big Water agreed to pay out nearly $10 million in discounts and giveaways over the next five years. Last month, a judge in San Francisco approved the pact.

Yet Bill Sullivan and other water men of his ilk are peeved about the agreement. They say Big Water is selling the people something other than "spring water" and fooling state and federal regulatory agencies into believing the same.

"The settlement is still pretty vague," Sullivan says from his Cobb Mountain office that will, most likely, be gone to bankruptcy in a few weeks.

"The consumer still doesn't know what they're drinking. They still don't know, by looking at the labels, what they're getting--and they're not getting it from a spring."

Spring Fling

IN THE OLD DAYS, spring water only came from one place: a spring that trickled naturally out of the ground. But nowadays "spring water" comes from two places: a spring and a borehole--a well drilled into the earth near the site of the spring.

Bill Miller is president of National Spring Water Association, a band of American water bottlers, like Bill Sullivan, who oppose the use of boreholes to get to spring water. "Putting in a borehole and calling it a spring was started when the bottled water industry took off," Miller recalls. "When spring water became popular and the big companies--I won't name any names--needed to match the demand, somebody said, 'I'll just put this well over here and no one will know the difference.'"

For purists like Miller and Sullivan, there is a major difference between water that comes from a spring and that which comes from a borehole.

Spring water is believed to be the most hygienic, cleanest form of water the human body can ingest; it's potable at the source. Natural spring water takes thousands of years to rise to the earth's surface, and it is then, and only then, that it is ready for human or animal consumption.

Boreholes, according to Miller and other anti-borehole groups, suck water from the earth that is not ready for use. The pumping mechanism of a borehole, while drawing from the natural spring's aquifer, reverses the natural flow of the aquifer and can draw in poorly filtered water and contaminants. And once a borehole has welled the same aquifer for a few years, it can leave behind a dried-out pit in the earth.

Using boreholes allows water companies to get to spring water more cheaply and quickly than using a traditional springhouse. The boreholes are taut mechanical fixtures, while springhouses, placed over a natural spring, are cumbersome and require upkeep and attention. A springhouse, like the one Bill Sullivan's Cobb Mountain uses, stands above the natural spring and takes about 10 percent of the surface water, then replaces what it doesn't use. A borehole, comparatively, takes all the water it can get.

Defining the term "spring water" has created an international debate inside the small--but wealthy--bottled water trade.

Arthur von Wiesenberger is probably the world's best-known authority on bottled water. He attained such credibility by consulting for just about every bottled water company on the planet, writing four books on the streaming topic and trekking the world tasting, observing and writing about water.

By von Wiesenberger's respected definition, spring water is defined as "water obtained from an underground formation from which water flows naturally to the surface or would flow if it were not collected from the underground via the borehole. To be identified as spring water on the label, the water has to be collected at the spring or through a borehole next to the point where it emerges."

For small bottlers like Sullivan, the legal understanding was always simple: spring water comes from a spring. The purity of the water, and therefore, the consumer's health, can be always attributed to the integrity of the spring--a borehole was never needed.

In the mid-'90s, as the larger European companies purchased more water companies on American soil--nabbing upward of 50 percent of the market, including the Alhambra man and Black Mountain--the use of boreholes tripled, according to industry experts.

As the water world turned into a cash crop, the debate flowed overseas. The contention reached a boiling point during an international water conference in Bern, Switzerland, two years ago.

Miller's National Spring Water Association lobbied for the locution "spring water" to exist only on bottles that used water that flowed from one natural orifice. Against them was the International Bottled Water Association (IBWA), presided over by Perrier businessman Kim Jeffrey, who favored the use of boreholes. While the two sides never came to an agreement, a lawsuit back in California helped break the spine of the NSWA's argument.

Shortly after Danone purchased Alhambra, the company took the state of California to court to challenge a rule that only allowed boreholes to be drilled within 200 feet of a natural spring. Surprising the NSWA, Sullivan and others who owned their own springs, the court ruled in Danone's favor and allowed boreholes to be drilled as far from the natural spring as needed.

Now it was open market for the term "spring water." One could stick a straw in the ground in San Jose and, if water dribbled over, could claim it came from a spring in San Diego.

Water Suer

THE MAIN THRUST of Sullivan's class action lawsuit was to force Big Water to remove the words "spring water" from labels when they used boreholes. The lawsuit contended, for the first time, that if Calistoga and Arrowhead wanted to market "spring water," then they better be working from the natural spring. The labeling and advertising, the suit claimed, were "false, misleading, or potentially misleading, in that the products are not spring water."

For the most part, the FDA's "Standards of Identity" helped to clean up the tomfoolery that seemed to go with bottled water labels. Since 1993, "glacial" water had to come from a glacier, "artesian" water from above a water table, and "naturally sparkling" water from a naturally carbonated spring.

The most glaring misuse of labeling still appears on the bottle of Aquafina, Pepsi's brand of bottled water. The label paints mountains and snow, insinuating that the water comes directly from a geologic source. Instead, Aquafina is processed municipal water (or tap water), with minerals added inside Pepsi's industrial plants. (For their part, Coca Cola also bottles a water, Dasani, which came under FDA scrutiny for claiming it was "purified water" when actually, like Pepsi's Aquafina, it was modified tap water.)

Lobbied hard by the Big Water-supported IBWA in 1996, the FDA formally set guidelines for "spring water" labels and included borehole water in the definition. The FDA found that 50 percent of "spring water" came from boreholes and ruled there was no need to announce the distinction to consumers.

The ruling was a setback for smaller spring water producers, but a major victory for the large companies that needed to produce high volumes of "spring water." Representatives for Big Water felt vindicated and pleased with the ruling.

"It's not just our definition," argues Marla Witteman, a spokeswoman for the Perrier Group. "It's the FDA's, the EPA's and several state health regulatory agencies. Bottled water is one of the most regulated industries."

Fine Mess

SINCE THE FDA APPROVED boreholes and the monitoring of their use, President Miller, of the National Spring Water Association, says it's impossible to supervise the wells. To exist, legally speaking, boreholes need to keep the same chemistry as the water from the original spring. But there are plenty of ways, Miller says, that borehole operators can rig the wells and fudge the paperwork to get results that support their cause. Also, the FDA hardly has the manpower to monitor all the boreholes in the country. "They can't get someone out there to check all those wells," Miller sighs. "It's not really enforceable."

And, unfortunately for consumers, Bill Sullivan argues, his lawsuit failed to make the label change enforceable either. Despite a hefty cash delivery to consumers in the form of rebates, the settlement makes clear, "Defendant shall be permitted to continue to bottle and sell bottled water as 'spring water.'" Starting this year, Calistoga and Arrowhead brands will give discounts for products for $1,000,000 a year for five years, and make contributions to charity in the amount of $950,000 every year for five years.

Perrier's Witteman says her company settled the lawsuit for one simple reason. "This was a business decision more than anything," she says. "Anytime a business gets sued, it's more than just lawyer expenses. There's a lot of handing over papers, employees testifying. There's a lot of lost expense."

To inform concerned customers, Miller says his group now places gold seals on bottlers who sell spring water that comes straight from the spring. "I think it's wrong that some companies tell their customers they're getting water from a spring when they're not. It's a disillusionment. In a perfect world we wouldn't have any boreholes. But we don't live in a perfect world."

And back in Lake County, Sullivan still isn't sure what's going to happen next. His company is bankrupt, but he's a got a spring for sale.

"We hear there's a company interested in buying us."

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From the May 10-16, 2001 issue of Metro, Silicon Valley's Weekly Newspaper.

Copyright © 2001 Metro Publishing Inc. Metroactive is affiliated with the Boulevards Network.

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