Keurig Dr Pepper faces a lawsuit over excessive arsenic levels in its Penafiel bottled water.

Update: On November 8, U.S. District Judge Susan Illston dismissed the lawsuit, finding that the plaintiff failed to show that the contaminated water affected him personally. But Illston left the door open for Pels to file an amended complaint, and dismissed Keurig's argument that FDA's bottled water quality standards don't apply to Peñafiel. The statute, Illston wrote, "clearly does apply to the Peñafiel mineral spring water."

Update: On June 21, Keurig Dr Pepper withdrew its Peñafiel bottled water for sale in the U.S., citing high arsenic levels. 

This story was originally published on June 5, 2019.

Keurig Dr Pepper "acted irresponsibly and unlawfully" by selling a bottled water product in the U.S. with unsafe levels of arsenic, according to a federal lawsuit filed Monday.

The 20-page suit (PDF), filed by California resident John Pels, cites a series of articles published by Consumer Reports, which highlighted a number of instances where the manufacturer's product—Peñafiel Mineral Spring Water—had registered levels of arsenic that exceeded federal standards. 

CR tested Peñafiel, as part of an an April investigation into bottled water, and found it had 18 parts per billion of arsenic on average, above the 10 ppb limit set by the Food and Drug Administration. In response, Keurig Dr Pepper conducted tests of its own, and said it discovered similar results.

The company then stopped production of the spring water for two weeks to enhance filtration of the product. It hasn't responded to requests for comment on whether it has resumed production, selling, or importing the water into the U.S.

Pels points to follow-up reports from CR in recent weeks that showed state and federal regulators had flagged Peñafiel for excessive arsenic several times, as early as 2013. The company, he claims, had to have known about the presence of high levels of arsenic well before CR's story. 

More on Peñafiel

"Keurig has concealed that thousands of its customers have ingested bottled water which contains unsafe levels of arsenic, a known poison," the lawsuit alleges. "Keurig would not even have undertaken the recently reported remedial measures except that it was embarrassed into doing so by an exposé in Consumer Reports."

A spokesperson for Keurig Dr Pepper didn't immediately respond to a request for comment.

The lawsuit could be a major headache for the bottler, which is already being investigated by the FDA over the reports of arsenic in Peñafiel. Regular consumption of even low levels of arsenic over an extended period of time has been associated with the increased risk of cardiovascular disease, lower IQ scores in children, and certain cancers and other health problems.

The FDA has previously pushed for recalls with other brands that contained similar amounts of arsenic, CR reported. In 2016 and 2017, the agency pushed for a recall of Starkey Spring Water, which is owned by Whole Foods, following tests of that brand that revealed about 12 ppb of arsenic on average. 

Penafiel sold just under two million cases of bottled water in 2018, and is "growing at a double-digit rate," according to Gary Hemphill, managing director of research at the Beverage Marketing Corporation, which analyzes the bottled water industry. The company has no comparable sales figures for Starkey, Hempney says. 

But the FDA has yet to ask Keurig Dr Pepper to pull Peñafiel from store shelves.

FDA spokesperson Pete Cassell tells CR that the agency is working with Keurig Dr Pepper to gather more information and follow up on the issue. He said the agency evaluates health risks in foods on a case-by-case basis, taking into account consumption and market distribution. 

"At this time the agency has not requested a voluntary recall [of Peñafiel]," Cassell said. "We will provide more information as it becomes available."

The suit could apply to all California consumers who bought Peñafiel over the past several years. Pels asserts multiple legal claims, including violations of California's consumer protection, unfair competition, and false advertising laws. 

Pels is seeking a court order against Keurig Dr Pepper that finds the manufacturer's conduct illegal and requires it to address the issue.

David Lake, the attorney representing Pels, declined to comment when reached late Wednesday.