Brita, Lead, and DC

Remember this?

"BRITA Donates 10,000 Water Filters to District"

Then you might want to read this:


"Water-pitcher filters miss lead particles"

Here are some relevant excerpts:

From the city's 2000 announcement: "Mayor Anthony A. Williams and DC Water and Sewer Authority (WASA) Board Chairman Glenn S. Gerstell today announced that The Brita Products Company is donating 10,000 water filtration pitchers for distribution to District families with children under age 6 and women who are pregnant or breastfeeding who live in areas with lead service lines... BRITA water filtration pitchers are certified by NSF International, the nation's leading independent test lab for the certification of water filtration products, to remove 98 percent of lead in tap water. Each filter has a usage life of two to three months and can provide up to 40 gallons of filtered water. The donated pitchers have a retail value of $26.99 each... Last month, the DC Department of Health recommended that children under age 6 and women who are pregnant or breastfeeding in the 23,000 homes with lead service lines not drink unfiltered water."



And from the more recent article on Brita's (lack of) effectiveness: "Water-pitcher filters may not reduce lead concentrations to acceptable standards in homes that have elevated levels of the metal in their tap water, because the filters do not remove lead particles, according to the Ontario Ministry of the Environment Canada. The ministry's declaration was issued just days after it received new advice from NSF International, the organization that certifies water filters."

Note: the second article may require subscription (or access through a university site). Email me, kramer_christopher at hotmail.com, if you want the full article and can't access it with the link.

To be fair, it does seem that Brita had its design assessed by an independent agency, NSF. I don’t remember much from my first-year torts class, but I believe there’s only strict liability for manufacturing defects, whereas design defects are subject only to a negligence standard. In other words, the fact that Brita had their design checked out may be enough to cover them, but don’t take my word for it.

Still, you might think that parents and mothers who were pregnant or breastfeeding at the time would want to know whether they or their kids were drinking water that they thought was ok, when, in fact, it wasn't. Seems like it would also be interesting to know whether there was any contradictory research at the time and whether the kind of lead particles that aren’t caught, according to the second article, would likely have been a problem in DC. If the answer to the first question is affirmative, maybe the independent agency should be the one on the hook (though I’d guess their pockets are not as deep as Brita’s, but that might be a question worth looking into, as well).

Anyone know whether anyone has looked into this yet? The second article is from August 15, 2007, so for all I know this is old news. (Haven't had time to do a search yet.)

Update 2/25/08: Even if Brita was covered when they donated the filters, did they have a duty to warn or issue a recall after they learned from NSF that their filters weren't as effective as they thought? Did Brita do so? If not, would their liability only apply to the period after they learned this information, and would potential plaintiffs be able to sort out the extent of the damage that occurred after that point? Whose burden would it be to sort out the damage? Also, Brita operates on a "customer lifetime value" model (much like razors and blades), so how long would Brita assume that customers would continue buying new filters? Would that be different for customers who had received donated pitchers? And is Brita safe if customers fail to use the pitchers correctly (e.g., by replacing their filters)? If so, what percent of customers are still likely to be using their pitchers as instructed seven or eight years later? You might think Brita would have data on this, given that from a business perspective, Brita would want to know how often its customers would keep buying new filters (and what percent would drop out, at what point, etc.).