Nestlé Hires Former FDA Official, Changes FDA Findings

Last month, Nestlé used its political clout and high powered lawyers to change the conclusion of an investigation by the US Food & Drug Administration (FDA) into the use of the words “spring water” on the labels of its Arrowhead brand of bottled water. This came to light in new documents we recently received after we sued the FDA in July to make the investigation public.

What these documents make clear is that companies like Nestlé play by a different set of rules than you or me. But they also show that our ongoing campaign to take the public’s water back from privatizers like Nestlé is having an impact!

We have been busy working behind the scenes to track Nestlé’s movements through our government agencies, and now, we’re going public.

This all started when members of the Story of Stuff Community prompted the FDA’s investigation. We questioned the legality of Nestlé’s labeling in the 160,000 comments submitted to the Forest Service, and as part of its review of Nestlé’s permit to bottle water from the San Bernardino National Forest, the Forest Service wrote to the FDA asking for help to determine whether or not Nestlé’s labels are FDA compliant.

According to the documents we received, the FDA responded to the Forest Service in April stating: ‘the FDA is unable to affirm that [some of Nestlé’s] springs meet the standard of identity for “spring water…”’ because one of the conditions required by federal regulations “does not appear to have been met.”1 The unmet condition is the requirement that there is a hydraulic connection between the boreholes that Nestlé uses to collect water and the actual spring it claims is the source of that water. The Forest Service then informed Nestlé of the FDA’s conclusion.

Within four weeks, Nestlé managed to completely flip this public agency’s position.

Nestlé hired an industry insider, attorney Joseph A. Levitt, who contacted the Director of the FDA’s Office of Compliance directly. Levitt “the U.S. Food and Drug Administration’s former top food regulator… brings a true insider’s knowledge…whether influencing policy making or confronting a threatened compliance action…Joe knows what the agency expects in the compliance arena and he can communicate a client’s position calmly and effectively to the FDA so the matter is put behind them.”

How convenient for Nestlé.

Levitt requested an urgent meeting with top officials at the FDA and warned that “extreme prejudice could result if those letters were released to the public without the benefit of the FDA having all the facts.” This meeting was granted, and seemingly overnight Nestlé changed the “facts” at the FDA.

In a letter written to the FDA, Levitt offered absolutely no answer as to whether or not Nestlé’s boreholes in question are connected to springs. Instead, he cherry picked language from the law and argued that the requirement for a hydraulic connection simply does not apply in this case. Despite the law’s very clear definition2, he said that Nestlé does not need to demonstrate a connection. Sadly, the FDA accepted this argument without appearing to make any further investigation or analysis.

In other words, Levitt argued that Nestlé is above the law and the FDA fell for it, hook, line and sinker. This is how corporate power works in America. But we’re not going down without a fight. Our investigation into the insider politics advancing Nestlé’s agenda shows that this case isn’t closed — if anything, we’ve uncovered more questions than answers.

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1. Link to bottled water definition in 21 CFR § 165.110(a)(2)(vi) 

2. “[Bottling] Plants shall demonstrate, on request, to appropriate regulatory officials, using a hydrogeologically valid method, that an appropriate hydraulic connection exists between the natural orifice of the spring and the bore hole.”

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