Wednesday, August 20, 2003

Bottlers sue state over law on labels

By EDWARD D. MURPHY, Portland Press Herald Writer
Copyright © 2003 Blethen Maine Newspapers Inc.

A manufacturer's group has filed a lawsuit to block a Maine law that would require bottled water labels to identify the water's source.

The suit filed Tuesday afternoon in U.S. District Court contends that Maine's law, set to take effect Sept. 12, violates the U.S. Constitution by interfering with interstate commerce, and violates federal laws that set less restrictive requirements for labeling bottled water.

The suit was filed by the Grocery Manufacturers of America, a trade association that represents hundreds of name brands, including bottled water companies such as Evian, Perrier, Dannon, Aquafina and Dasani, said Stephanie Childs, the group's spokeswoman. One of its members is Nestle, which owns the Maine-based Poland Spring brand of bottled water.

The lawsuit touches on the increasingly contentious and litigation-heavy area of food labeling, including some high-profile Maine cases.

In June, a class-action lawsuit was filed against Nestle and Poland Spring, contending that the bottled water is not really spring water and comes from a well in a parking lot. Poland Spring said its water meets federal requirements for being called spring water.

And last month, Monsanto filed a lawsuit against Portland-based Oakhurst Dairy over milk labels that proclaim the dairy's milk comes from cows that aren't treated with artificial growth hormones. Monsanto, which produces the leading brand of bovine artificial growth hormones, said the label misleads consumers into thinking that there's something wrong with the milk from cows treated with the hormones.

Childs said the GMA is only interested in making sure that bottled water labels are uniform, and wants to protect both consumers and bottlers who might have to design separate labels for Maine or abandon the market. She said the group isn't aware of any other state labeling laws similar to Maine's.

"The GMA is a supporter of national uniformity of labeling standards," she said. "Efforts to create 50 different sets of labels in one nation is counterproductive. We want to make sure a consumer, whether in Maine, Kansas or Colorado, gets the same information."

According to the lawsuit, a federal law bars states from setting their own standards for identifying the types of bottled water, and subsequent rules set requirements for such identifiers as "spring water," "purified water," "artesian water" or "ground water."

The Maine law, adopted earlier this year, requires that bottled water labels "identify the name and geographic location of the water body, well or public water supply from which the water was obtained."

The lawsuit seems to center on the Maine requirement that water from a public supply be identified as such. The suit notes that one manufacturer entered the bottled water business relying on a 1995 Food and Drug Administration rule that purified water, whatever its source, can be labeled "purified water" even if it's drawn from a municipal water system.

"That company designed its product around the federal standard, and the company and its bottlers have expended over $300 million in installing the facilities necessary to producing its purified bottled water products," the lawsuit said. "The new Maine labeling requirements would force manufacturers and distributors of purified water to include wording that conflicts with the valid perceptions of their consumers that purified water differs significantly from tap water, and is likely to cause both lost goodwill and sales."

The lawsuit doesn't identify the company that spent the $300 million on its product, and Childs declined to identify it.

Bottled water is a big business. It is currently the fastest-growing beverage in the country, with nearly $8 billion in sales last year, second only to soft drinks.

Poland Spring alone sold 220 million gallons of water last year, worth $621 million.

By the same token, labels are being read with increasing frequency by consumers, said Mario Teisl, a professor of resource economics and policy at the University of Maine.

Teisl said the push for putting more information on labels can come into conflict with federal laws seeking uniformity and preventing misleading or false claims about products.

"There have been significant increases in label use and understanding," Teisl said. "People don't read labels just to read labels, they read labels because there's something on there they want to know about."

But Teisl, who worked at the FDA in the mid-1990s, said it does make some sense to set limits on what states can require for food labels.

"There's a long history that says you don't want every state having its own labeling because so much food goes across state lines," he said. "I understand people want to know certain information over and above that, but the question is, what are the benefits of that information and what is it going to cost?"

Childs said the lawsuit would not prevent a water bottler from putting information about the source of the water on a label, but would stop Maine's attempt to require it.

Chuck Dow, a spokesman for the Maine Attorney General's office, said the state was aware of the suit but had no comment.

Attempts to contact Robert Spear, commissioner of the Maine Department of Agriculture, Food and Rural Resources, were unsuccessful.

Staff Writer Edward D. Murphy can be contacted at 791-6465 or at: emurphy@pressherald.com