By Mark A.W. Smith

Introduction
World Health Organization (WHO) is expected to issue a guideline on calcium and magnesium in regard to water treatment. Many expect that a key component of their recommendations will be an assertion that many standard water treatment processes—notably desalination, softening and reverse osmosis—create unhealthy drinking water. The proponents of this position assert that these systems remove too much of the calcium and magnesium from potable water.

What’s WHO?
WHO is a United Nations (U.N.) agency charged with promoting the health of all people, worldwide. Founded in 1948, WHO coordinates all of the U.N.’s health projects globally. One of its primary functions is to issue health advisories to member states. WHO is not a regulatory power; it can’t order U.N. member states to do anything. If, as expected, it issues an opinion that removing calcium and magnesium from drinking water is unhealthful, this does not mean that end user water treatment will be banned instantly. Instead, each member nation will have to decide what, if anything, to do about this information.

In both the U.S. and Europe, the process of implementing regulations that would curb water softening and/or desalination is time consuming and cumbersome. In the U.S., it is unlikely that any such regulations will be formulated at the federal level. Some states may adopt such regulations, especially those that are already seeking to ban or limit the use of softeners or to prevent the construction of desalination plants because of rising TDS (total dissolved solids) levels and the saline discharge of such treatments.

Who cares?
If WHO’s pronouncements won’t result in a ban of water softeners, should this industry care? The short answer is yes. Any position issued by WHO can create both pitfalls and opportunities for companies in the industry.

On the pitfall side, the problem of potential litigation looms large. Many of the activists who testified at the Baltimore conference alleged that the removal of calcium and magnesium from drinking water leads to increased incidence of cardiovascular disease (CVD) and bone density loss, among other (alleged) health issues. Many surveys, papers and poster presentations made this statement.

Product liability
This, in turn, becomes evidence that can be used in a lawsuit by persons seeking to prove that their health problems were caused by use of water softeners. Such suits fall under the ambit of product liability law, the legal doctrine that the maker or seller of a product ought to be held responsible for the harm that product causes.

In order to prove a product liability claim the plaintiff must show that he suffered harm; that the harm was caused by the product; and that the harm arose from the proper use of that product.

Those persons who suffer from CVD or bone density loss will be able to use the WHO position as evidence to support such a claim. This does not mean they will win. The WHO position is only evidence and any defendant in such a suit will be able to introduce its own science to rebut the claims. However, such evidence will give the plaintiffs a leg up, since most juries are likely to view the WHO position as that of an objective disinterested observer, which tends to be given greater weight.

Who gets sued
Product liability law in the U.S. allows for the injured party to sue anyone in the chain of distribution. While the manufacturer is usually the party ultimately liable for defective products, it is the seller’s burden to bring them in. With the rise in manufacturing in China and India, often by pirate companies using methods and materials patented by others, collecting from some manufacturers may be impossible, which means that the dealer could end up as the primary defendant in the case.

Of course, most manufacturers in the developing world are perfectly legitimate and will stand behind their product if called upon to do so. However, if the court can’t get jurisdiction over your foreign supplier or manufacturer, then you will be left holding the bag. One way to limit your risk, as a dealer, is to make sure that all of your suppliers carry liability insurance with an A (or better) rated carrier and that they have a Vendors Endorsement on their policy. A Vendors Endorsement provides insurance protection to the dealers of a manufacturer’s products if the dealer is sued over the product. Dealers, look over your policies right now for this critical coverage.

Legal theories
There are two theories that a dealer can be sued over. The first is that the product is unreasonably dangerous. Under this theory, the plaintiff will seek to prove that the benefit of soft water—reduced spotting, pleasant taste, better cleaning and increased life of plumbing components—is not worth the risk of increased heart attacks and bone disease. In other words, the claim will be that it was unreasonable for the industry to put a product on the market that softens water if the water it produces is dangerous to drink. The latter is the weakest part of the argument. Taken on its face, such an argument must probably fail. Nobody is claiming that the water that comes out of ROs and/or softener units is toxic or that poisons are added by their use. Rather, the claim is that the water is less healthy than it would otherwise have been. Of course, in those markets where there are toxins in the public water which purification systems remove, the argument is even weaker. Most people in places where arsenic or lead are present in water would happily lose the calcium and magnesium if it means they also lose the poisons.

The second theory will arise out of representations made in the sale of the product. Plaintiffs can be expected to assert a failure to warn theory; i.e., that the seller knew or should have known of the dangers and failed to warn the buyer. Currently this argument is weak as well, at least in developed countries. Since most people in the U.S. and Europe have access to a healthy diet (even if they don’t take advantage of that access) the water industry had no reason to know that the trace amounts of calcium and magnesium in water were part of their customers’ nutrition. Indeed, the focus of the WHO project has been on the third world.

Once the WHO report has been out for a while, this argument may gain some strength, since the report’s publication will have the legal effect of placing the industry on notice of the issue. Those manufacturers and dealers who elect not to change their product designs should consider including adding a warning that the system will remove calcium and magnesium from the water and that users should consult a doctor about nutritional replacement thereof.

Who benefits?
The other side of the coin is that for some members of the industry, the WHO report could represent a sales opportunity. Some of the science folks who contribute to this very magazine assure me that systems can be designed to let calcium and magnesium (and just about anything else) pass right through; or treatment steps can be added that restore these elements before dispensing the water. In regions where this issue raises concern, it may be profitable to approach existing customers for a retrofit and to promote RO products to new users as a healthy alternative to ‘demineralized’ waters. A great deal of care must be taken here. Any claims that are made for health benefits become a warranty, which is legal jargon for a promise. If your marketing or sales materials appear to promise healthier water to your customer and he suffers heart or bone disease anyway, he will have grounds to sue your for the breach of your warranty.

(California already holds manufacturers to a higher standard than the other 49 states when it comes to product collaterals—labels, brochures, websites and the claims implied therein. Chances are, if you are already selling your products in that state, your literature already meets the standard that will be necessary nationwide after WHO’s guidance is issued.)

This potential risk is fairly easy to avoid as well. A little care in crafting your message will go a long way toward protecting your business. Avoid making any claims for direct benefit. For example, if your ad says, “Our systems provide healthy water with all the essential minerals preserved,” you are probably in trouble down the road, since you are making claims for health benefits. On the other hand if you say, “Our systems meet WHO guidelines for calcium and magnesium”, you’re in good shape.

Conclusion
For dealers, this is one area where having an experienced product liability attorney review your ads and marketing materials will be well worth the cost.

I also urge you to meet with your insurance broker to make certain you are fully covered for product liability, because an ounce of prevention can save many thousands of dollars in litigation costs and awards of damages.

About the author
Mark A.W. Smith is the principal of Mark A.W. Smith & Company, providers of alternative dispute resolution services, including mediation and arbitration of claims in the construction, environmental and insurance coverage arenas, specializing in trades and trade contractors and their issues. Smith spent over 25 years as an executive for several of the major carriers. He can be reached at msmith@smithclaims.com or by calling (520) 887-1200.

 

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