Berkey Lawsuit (2026): What Happened After the EPA Orders

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The short answer

The Berkey lawsuit grew out of EPA stop-sale orders issued from December 2022. The EPA said Black Berkey elements, which contain silver and were sold with virus and bacteria claims, were unregistered and misbranded pesticides under federal pesticide law (FIFRA) (EPA order). Berkey’s makers challenged the orders in court and haven’t succeeded so far: a Texas case was dismissed for lack of standing, and on September 18, 2026 the First Circuit upheld the refusal to block the orders. Berkey still sells systems, though its site lists several as out of stock or in limited availability, and it offers Phoenix elements in place of Black Berkey on some of them (Berkey).

What did the EPA do to Berkey?

EPA Region 8 issued a Stop Sale, Use, or Removal Order to James Enterprise, Inc., doing business as Berkey Filters, in Pueblo, Colorado, on December 27, 2022 (FIFRA-08-2023-0011). It covered the Black Berkey filter and the Travel, Big, Royal, Imperial, Crown, and Berkey Light systems that contain it, plus Sport Berkey filters and bottles. Between February and May 2023, the EPA issued six more orders to Berkey makers and distributors, according to the First Circuit (opinion). One of them, on May 8, 2023, went to Berkey International LLC in Puerto Rico and named the Travel, Big, Royal, Imperial, and Crown Berkey systems (FIFRA-08-2023-0038).

• The claims: the label claimed over 99.999% of viruses and over 99.9999% of pathogenic bacteria, and distributors’ websites made similar claims, including “100% of the pathogens” (First Circuit; EPA).
• The silver: the orders quote a Berkey seller’s FAQ saying silver is used “to self-sterilize” the elements. Silver was first registered as a pesticide in 1954, and the First Circuit treated the silver plus the pathogen claims as the basis (First Circuit).
• The effect: no sale or distribution of covered products without the EPA’s written permission, until the EPA revokes the order in writing (EPA).

Did Berkey win its lawsuit against the EPA?

Berkey’s makers argue that the filters are mechanical devices, not pesticides, and say the EPA is “misclassifying Berkey Water Filters as pesticides” (Berkey). The First Circuit found Berkey unlikely to succeed on that argument at the injunction stage. The case has not reached a final ruling on the merits, and Berkey can still ask for a rehearing or for Supreme Court review.

Because no injunction was granted and the EPA has not revoked them, the orders remain in effect. As of 19 October 2026, we found no report that the Puerto Rico case has closed. Separately, a consumer class action over Berkey’s marketing, Farrell v. New Millennium Concepts, No. 3:22-cv-728 (N.D. Tex.), was pending in 2023 (court record); we have not confirmed its current status.

Can you still buy a Berkey?

Yes, with limits. On the maker’s site, berkeywater.com, the Big Berkey, the Travel Berkey and Black Berkey elements each carry a notice that the item “is either out of stock or has limited availability.” Berkey says they are not for sale to residents of California and Iowa. The Big Berkey now comes with Phoenix Gravity New Millennium Edition elements, which Berkey sells in lieu of Black Berkey elements and says fit any Berkey system; the Travel Berkey page still lists Black Berkey elements.

Are Berkey filters NSF certified?

Only for chlorine, and only with Phoenix elements. NSF International lists the Big, Royal, and Travel Berkey with Phoenix PGF9-2 elements under NSF/ANSI 42 for chlorine reduction and taste and odor, with a 1,050-gallon service cycle (NSF listing). NSF has no Berkey listing under NSF/ANSI 53, the standard for lead and PFAS, and we found none at IAPMO R&T or WQA. Berkey says Black Berkey elements meet ANSI/NSF (Std. 53) protocol, which is a tested-to claim, not certification. See our Big Berkey review.

What should you buy instead of a Berkey?

If you want a gravity filter certified for lead and PFAS, the Culligan MaxClear is certified by IAPMO R&T for lead and Total PFAS, but only in Culligan’s own Venture and Scout housings. Culligan sells the MCF701 filter for Berkey housings too, but the certification doesn’t cover it there. If you have power, countertop RO covers more.

Certified: Certified by an independent body (named in each pick). Lab test: Tested by a named independent lab, not certified. Claim: The maker's claim, not certified. No: No claim. PFAS means PFOA/PFOS, or Total PFAS where the pick says so.

More options in the best gravity water filters.

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Prices as of October 31, 2026. Product prices and availability are accurate as of the date/time indicated and are subject to change. As an Amazon Associate we earn from qualifying purchases.