Beverage conglomerate Keurig Dr. Pepper is facing down a new federal lawsuit over allegations that a bottled water product contains unacceptable levels of arsenic. The 20-page lawsuit, filed by John Pels, a resident of California, accuses Keurig Dr. Pepper of failing to address the problem in a timely manner, citing arsenic levels found in the company's Peñafiel Mineral Spring Water, a bottled water product distributed and sold in the United States.
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In an April investigation into bottled water, Consumer Reports found after extensive testing that bottles of Peñafiel contained 18 parts per billion of arsenic on average, almost double the 10 parts per billion limit established by the US Food & Drug Administration. Keurig Dr. Pepper performed follow-up tests on its own initiative and found similar results. The company stopped production of the bottled water to improve filtration systems, but has declined to comment on whether or not the bottled water product has is currently being sold or imported into the United States.
Further investigations from Consumer Reports provide much of the basis for John Pels' lawsuit. In a follow-up report, Consumer Reports revealed, after reviewing FDA records, that federal regulators learned about the high levels of arsenic in Peñafiel as early as 2013, long before the consumer advocacy site conducted its own tests on the product. In 2015, the FDA placed the bottled water on an "import alert," citing excessive arsenic levels.
However, concerns started even earlier. In 2013, tests from New Jersey's health department discovered arsenic levels in Peñafiel up to 21.1 parts per billion. FDA regulators swooped in to perform their own tests, even as Rogelio Martinez, president of the importer involved in the raid, told authorities that the water was being imported for a "personal activity," rather than the sale on the open market. Despite Martinez's protests, the importer, R.R. Importaciones, was ordered a year later to destroy 63 cases of Peñafiel bottled water due to the unacceptably-high arsenic levels.
Keurig Dr. Pepper says Peñafiel was not being imported into the United States during the time frame cited in FDA records. Director of corporate communications Katie Gilroy claims "the product referenced in those reports was imported into the U.S. illegally, and it was labeled and formulated for sale in Mexico only." The arsenic limit in Mexico for bottled water was 25 parts per billion in 2013. Gilroy notes that "the findings from N.J. regulators in the 2013 testing [...] indicate that the illegally imported product tested was within Mexican regulatory limits."
In his lawsuit, John Pels argues that Keurig Dr. Pepper knew about Peñafiel's arsenic levels prior to the publication of Consumer Reports' investigation, when the information became public. "Keurig has concealed," he writes, "that thousands of consumers have ingested bottled water which contains unsafe levels of arsenic, a known poison. Keurig would not even have undertaken the recently reported remedial measure except that it was embarrassed into doing so by an exposé in Consumer Reports." Sales for Peñafiel in the US have been up over recent years, with 2 million cases sold in 2018.
Pels' lawsuit hopes to become a class action so it could represent all Californians who have purchased bottles of Peñafiel over the past few years. Frequent consumption of low levels of arsenic has been associated with an increased risk for myriad health problems, including cardiovascular disease, decreased IQ scores in children and some cancers. Despite concerns, neither the FDA nor Keurig Dr. Pepper have yet called for a recall of the bottled water product.
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