New Millennium Concepts Ltd. (NMCL), the manufacturer of Berkey water filtration systems, filed a federal lawsuit against the EPA in August 2023, challenging the agency's classification of Black Berkey Elements as a pesticide device under FIFRA. The district court dismissed the case in 2024, ruling that it was filed in the wrong jurisdiction and that the matter needed to be brought in a different court. NMCL has since filed an appeal, and the case is currently before the Fifth Circuit Court of Appeals as of May 2026. NMCL has publicly indicated it expects some form of resolution in late 2026.
Berkey water filter systems remain available for purchase. New systems ship with Black Berkey Elements included. Standalone Black Berkey replacement elements are currently sold out at all authorized dealers. The EPA issued a stop-sale order that halted production, and pre-existing inventory has been depleted at the dealer level. Berkey Phoenix Elements are the currently endorsed replacement option while the legal matter is resolved.
Current Status: May 2026
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Lawsuit filed: August 2023, NMCL v. EPA, federal district court
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District court: Dismissed in 2024, ruling the case must be filed in a different jurisdiction
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Appeal filed: NMCL appealed to the Fifth Circuit Court of Appeals
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Current status: Case is pending before the Fifth Circuit; NMCL has publicly stated it expects some form of resolution in 2026
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Berkey systems: Available, ship with Black Berkey Elements included
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Standalone Black Berkey replacements: Sold out; production halted by the EPA's stop-sale order, pre-existing inventory is depleted
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Endorsed replacement: Berkey Phoenix Elements (in stock)
What the Lawsuit Is About
The EPA's action against NMCL centered on the silver content present in Black Berkey Elements. The EPA cited that silver content as the basis for classifying the filter elements as a pesticide device under FIFRA, the Federal Insecticide, Fungicide, and Rodenticide Act. Under FIFRA, products classified as pesticide devices are subject to specific registration and labeling requirements.
NMCL disputed the EPA's classification, arguing that its filter elements are water filtration products, not pesticide devices, and that the agency's interpretation of FIFRA exceeded its statutory authority. As part of the EPA's regulatory action, a stop-sale order was issued that halted production and sale of standalone Black Berkey replacement elements. Complete Berkey systems continued to ship with Black Berkey Elements pre-installed from inventory produced before the stop-sale took effect.
The lawsuit was filed in federal district court in August 2023. The grounds included challenging the EPA's regulatory basis for the classification and the harm that the classification caused to NMCL's business and to the public's access to established water filtration technology.
Timeline of Key Events
August 2023
NMCL Files Federal Lawsuit Against the EPA
New Millennium Concepts Ltd. filed suit in federal district court, challenging the EPA's pesticide-device classification of Black Berkey Elements under FIFRA. The EPA's regulatory action included a stop-sale order, which halted production and sale of standalone Black Berkey replacement elements while the legal challenge proceeded.
2023-2024
Congressional Response
Congressman Matt Gaetz (R-FL) submitted a letter to EPA Administrator Michael Regan, raising concerns about the EPA's classification of Berkey water filter elements and its impact on consumer access to water filtration products.
June 2024
Supreme Court Overturns the Chevron Doctrine
In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled the 40-year-old Chevron doctrine. Under Chevron, courts were required to defer to a federal agency's interpretation of ambiguous statutes. Under the new standard, courts must apply their own independent judgment about whether an agency's regulatory action is legally justified. This ruling has direct implications for NMCL's appeal.
2024
District Court Dismisses the Case
The federal district court dismissed NMCL's lawsuit, ruling that the case was filed in the wrong jurisdiction and needed to be brought before a different court. The dismissal was procedural: the court did not rule on the merits of NMCL's challenge to the EPA's classification.
2024-Present
Case Moves to the Fifth Circuit Court of Appeals
NMCL appealed the district court's dismissal to the Fifth Circuit Court of Appeals, where the case is currently pending. NMCL has publicly indicated it expects some form of resolution in 2026, though court proceedings do not operate on a guaranteed timeline. The overturning of the Chevron doctrine strengthens NMCL's position on appeal: courts are no longer required to defer to the EPA's interpretation of its own regulatory authority.
Why the Chevron Ruling Matters for This Appeal
The Chevron doctrine, in place for four decades, required federal courts to defer to a government agency's interpretation of its own governing statutes when the statute was ambiguous. In practice, this meant agencies like the EPA could broadly define their own regulatory reach, and courts would largely accept that interpretation.
The Supreme Court's 2024 ruling in Loper Bright Enterprises v. Raimondo ended that deference. Courts must now apply their own independent legal judgment to evaluate whether an agency's action falls within the authority granted to it by Congress. For NMCL's appeal before the Fifth Circuit, this is a meaningful procedural shift: the appeals court will evaluate the EPA's FIFRA classification on its legal merits without presuming the EPA's interpretation is correct.
"Under the new rule, courts are now instructed to rule on agency powers by using the court's own judgment about whether a federal agency is right, wrong, or overstepping their authority, instead of deferring to the agency's interpretation." From NMCL's July 2024 update on the EPA lawsuit
Legal observers note that the Chevron reversal is one of the most significant shifts in administrative law in a generation. For any case where a company is challenging a federal agency's interpretation of its statutory authority, the playing field has changed significantly in the challenger's favor.
What This Means for Berkey Filter Availability
The EPA's action resulted in a stop-sale that halted all production of Black Berkey Elements. What is currently available came from inventory produced before that stop-sale took effect.
New Berkey systems still ship with Black Berkey Elements because those systems contain pre-stop-sale inventory. Standalone Black Berkey replacement elements are fully sold out because that same pre-stop-sale inventory has been depleted. There is no remaining standalone supply, and there will not be until the appeals court case is resolved and production can resume.
If you see standalone Black Berkey replacement elements listed on Amazon, Walmart, eBay, or other third-party marketplaces, those have a high probability of being counterfeit. Counterfeit elements will not perform to Berkey specifications. Purchase replacement filters only from authorized Berkey dealers.
Available
All complete Berkey water filter systems, shipped with Black Berkey Elements from pre-stop-sale inventory. Berkey Phoenix Elements (in stock, endorsed replacement). PF-2 fluoride and arsenic reduction filters (compatible with both Black Berkey and Berkey Phoenix Elements).
Currently Sold Out
Standalone Black Berkey replacement elements. Production was halted by the EPA's stop-sale order, and pre-stop-sale standalone inventory is fully depleted. Berkey Phoenix Elements are the endorsed in-stock replacement for existing systems that need new elements.
Congressional Attention to the EPA Action
The EPA's regulatory action against NMCL drew attention from members of Congress. Congressman Matt Gaetz (R-FL) submitted a formal letter to then-EPA Administrator Michael Regan, expressing concern about the agency's classification of Berkey filter elements and the effect that classification was having on consumer access to established water filtration technology.
The congressional letter underscored a broader concern about regulatory overreach and the practical consequences of the EPA's FIFRA classification on a product category that millions of Americans rely on for clean water.
BigBerkeyWaterFilters.com: What You Need to Know
BigBerkeyWaterFilters.com has been an authorized Berkey dealer since 2008. We are the largest authorized Berkey dealer in the United States. This website is operated by Treehawk Health LLC and is separate from the manufacturer, NMCL. We do not have visibility into the active litigation or NMCL's internal legal strategy beyond what is publicly disclosed.
We are committed to keeping customers accurately informed as this case develops. The companion article on our site, Is Berkey Going Out of Business? The Full Story, covers the broader business status and product availability questions in more detail.
Frequently Asked Questions: Berkey vs. EPA Lawsuit
What is the Berkey EPA lawsuit about?
The lawsuit, filed by Berkey manufacturer NMCL in August 2023, challenges the EPA's classification of Black Berkey Elements as a pesticide device under FIFRA. The EPA cited the silver content in the filter elements as the basis for its classification. NMCL argues the classification is legally improper and threatens the company's ability to sell its water filtration products.
When did NMCL file the lawsuit against the EPA?
NMCL filed the federal lawsuit in August 2023, in federal district court. The lawsuit followed the EPA's regulatory action that classified Black Berkey Elements as a pesticide device under the Federal Insecticide, Fungicide, and Rodenticide Act.
What is the current status of the Berkey EPA lawsuit in May 2026?
As of May 2026, the case is pending before the Fifth Circuit Court of Appeals. The district court dismissed NMCL's original complaint in 2024, ruling it was filed in the wrong jurisdiction and needed to be brought in a different court. NMCL appealed that dismissal, and the appeal is currently active. NMCL has publicly indicated it expects some form of resolution in 2026, though court proceedings do not operate on a guaranteed timeline. No final appellate ruling has been issued.
Why did the district court dismiss NMCL's lawsuit?
The district court ruled that the case was filed in the wrong jurisdiction and needed to be brought before a different court. The dismissal was procedural: the court did not assess whether the EPA's classification of Black Berkey Elements under FIFRA was legally valid. NMCL appealed the dismissal, and the question of proper jurisdiction is now before the Fifth Circuit Court of Appeals.
How does the Chevron Doctrine ruling affect Berkey's appeal?
The Supreme Court's June 2024 ruling in Loper Bright Enterprises v. Raimondo overturned the Chevron doctrine, which had required courts to defer to federal agencies' interpretations of ambiguous statutes. Under the new standard, courts apply their own independent legal judgment when evaluating whether an agency's action falls within its statutory authority. This is favorable for NMCL's appeal because the Fifth Circuit will assess the EPA's FIFRA classification on its legal merits without automatically deferring to the EPA's position.
Can I still buy Berkey water filters while the lawsuit is pending?
Yes. Complete Berkey water filter systems are available and ship with Black Berkey Elements from pre-stop-sale inventory. The EPA's action halted all Black Berkey Element production, so what is currently in systems is inventory that existed before the stop-sale took effect. Standalone Black Berkey replacement elements are fully sold out and cannot be restocked until the appeal is resolved. Berkey Phoenix Elements are the currently endorsed replacement option for existing Berkey systems that need new elements.
What did Congress do in response to the EPA's action against Berkey?
Congressman Matt Gaetz (R-FL) submitted a formal letter to EPA Administrator Michael Regan raising concerns about the agency's FIFRA classification of Berkey filter elements and the effect on consumer access to water filtration products. The letter reflected broader concerns in Congress about regulatory overreach in this area.
Will standalone Black Berkey replacement elements be available again?
Standalone Black Berkey replacement elements are currently sold out at all authorized dealers as a result of the EPA's stop-sale order, which halted production while the legal challenge proceeds. Restocking depends on the outcome of the ongoing appeal before the Fifth Circuit Court of Appeals. NMCL has publicly indicated it expects some form of resolution in 2026. Berkey Phoenix Elements are currently available and are NMCL's endorsed replacement option for customers who need new elements for their existing systems.
What is the EPA's legal basis for classifying Berkey filters as a pesticide device?
The EPA cited the presence of silver in Black Berkey Elements as the basis for applying a pesticide-device classification under FIFRA. NMCL disputes that the silver content in the filter elements triggers FIFRA jurisdiction and argues that the EPA's application of pesticide-device regulations to a water filtration product exceeds the agency's statutory authority.
By
Dan DeBaun
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I’ve been doing research and learning about all of the toxins in our everyday lives for about ten years now. People are finally catching on but still so many that don’t know and laugh when you try to teach them. We purchased a Berkey because it’s the best of the best and a friend of mine who is a well digger, told me that a Berkey is what he took to Africa on a missions trip to dig wells for people to have clean water. I shouldn’t be surprised by this article but still am somehow. I believe in this 2025 administration and am hoping and praying that RFK will be the answer that America needs and we can get our black Berkey filters back!!
Hi, I am livid that I can't purchase replacement filters, I need filters ASAP. What are the options while waiting this out? Please help!
Hi Diane -
We don't have an estimated time on the black berkeys yet, but in the meantime we have the new and improved ultra sterasyl ceramic filters now available. These are similar in performance, about half the price, but need to be replaced more often (approx every 6 months - 1 year).
https://www.bigberkeywaterfilters.com/replacement-filters.html
Thanks
Dan
Are you expecting this to be overturned with the new administration starting in 2025?
Hi CB -
It's hard to say, but we would think so for sure. We're watching this closely and will do what we can once new cabinet members are in place.
Thanks
Dan
Perhaps the EPA should focus on the true toxins killing us and the environment.
Would that create too much of a financial loss for the big boys?
Is there a way we buyers and users of Berkey filters can get in on this lawsuit? We are being left exposed to these toxic contaminants with other inferior filters and know for a fact that we like Berkey the way they are being made now because they work great. Unlike any other brands we've tried. Even the birds outside don't come to our bird bath if we use our culinary water but do, if we use Berkey water. Even they know better.
Hi Thereasa -
You can write you representative, but right now it's in the courts and being fought hard.
Thanks
Dan
"If a law is unjust, a man is not only right to disobey it, he is obligated to do so."
Thomas Jefferson
What a joke , Round up sprayed in food and cigarettes still being sold , these govt agencies are a joke and don’t care about public health
That is so true. THey still sell that cancer causing round up in the stores. So whats up with that regulation???
I find this entire thing ironic.
Being an ex-military member who was stationed at one air station after another drinking who knows what was in the water systems. Things are just coming to the surface as to what ended up in our water.
Let alone, cities with lead (among other things that will cause health issues) in their drinking water that have gotten away with it for decades and where has the EPA been for these people?
Now the EPA decided to pick a company that has decades of history of no complaints of medical issues.
Where is the EPA proof there are any problems with this company?
Is this another example of fraud, waste, and abuse of our tax dollars going up in smoke?
If so, heads should roll for such BS.
As we know holding the government responsible for this kind of thing is impossible.
It makes one wonder if there are other filtration companies behind this and who might have to gain from such a shutdown.
It sounds like there needs to be a 20/20 type of investigation needs to happen. There seems to be something wrong with the water but it's not the filters.
This doesn't add up IMO, something seems fishy.
Funny how the EPA couldn't be bothered to lift a finger in East Palestine, OH, to clean up a chemical spill but they make preventing people like those residents from being able to filter their own water a priority by going after companies like Berkey.
This labeling silver as a pesticide is a legalese move to waste time and money in our now belabored kangaroo court system.
If the EPA truly cared about pesticides and human health, they would focus their efforts on stopping the industrial systematic poisoning of the planetary ecosystems (ocean, atmosphere, soil) that maintain the delicate balance of microscopic life crucial to our health and very existence
Interesting that the EPA allows toxic chemicals into our fresh water supplies along with runoff from livestock, actual pesticides and a host of other chemicals and PFAs. But they decide to ban the sale of a carbon based filter because it incorporates silver? Historically, a silver spoon or other piece of silver was added to one's drinking water supply to help ward off bacteria. Now they want to restrict it? Makes no sense. I have used Berkey for more than 20 years and had the water tested from my Berkey and my homes city water which has award winning water. Berkey came back with safer levels than the city water.
They are totally in bed with big Pharma, so this thing is just another way to more people sick, so more money. The real route of evil is lobbyists
That's why they want to stop Berkey. They're keeping people from drinking the contaminated water that's making them sick.
As you can tell by all of the comments, there are not many fans of our government or the EPA, or any other three letter agency for that matter. What does this tell you? It’s time to thoroughly clean house and get back to the nation our founders intended. It’s “We The People”, not “We The Government”. Stop being complacent, get together and force a return to the U.S. Constitution and end all of this nonsense.
This matter disgusts me. Berkey water filter and products are the best. Our own government is trying to get away from poisoning American people. This product removes the stuff we don’t want to drink. I pray Berkey wins this lawsuit and our dirty government wants us to drink there filthy and disgusting water that makes us sick. Please Berkey, never give up, because America’s are behind you all the way. Justice will be served on all evil.
Amen!!
Great
Make no mistake, this is an agenda being pushed by big pharma and the parasites that get kickbacks, more people are realizing that it is the chemicals in our food and water causing sickness, stay the fight and try to inform as many as possible
I have used Berkey water unit and carbon filters for many years. I also purchased units for my kids. Long Island NY has some of the most toxic drinking water yet we pay high taxes and water bills. We all depend on Berkey not our government. In fact they have not done a dam thing about the cancer causing water. My young daughter diagnosed with cancer 7 years ago and has not drank any water unless its filtered with Berkey Filters.
For lack of a more eloquent phrase...so much bad stuff is allowed in our drinking water and waterways it seems that the overall focus of the EPA should be here and not on Berkey's tried and true systems. Something is amiss here but we've all known that for awhile now.
Correlation- Berkey is actively promoted by critical thinking(CT) influencers and websites, and purchased by CT individuals. The government used the IRS as a weapon against same groups in the past.
Vote for President Donald Trump in 2024 and this will be immediately quashed.
Glyphosate is a deadly poison that nearly killed me- until I got a Big Berkey and now I can again drink clean water! I make myself available to help this lawsuit any way I can.
I love how all the comments are from borderline retards with no ability to think beyond themselves. Silver has been a registered pesticide since 1954. the EPA is not suing them, they are suing the EPA. the law says if you have "registered pesticides" in your product you must adhere to certain disclosures and labels when selling to the public. They are using a registered pesticide and are surprised that the EPA cares *surprised pikachu face*
If we didn’t have the ability to think for ourselves, we’d simply take the government overlords at their word and never dream of questioning their logic or motives on this and other onerous regulation. Although silver is regarded as a pesticide due to its ability to kill bacteria, viruses and fungi, it is hardly unsafe. It is used in numerous filter systems, not just Berkey, to keep the filter free from bacteria, as well as band-aids, tooth brushes and paste and so on. And no scary burdensome labeling. In my opinion it is really stupid to classify silver in the same category as diazinon, permethrin and DDT which are never used in any filter to prevent bacteria growth. Why not then label all foods containing preservatives as pesticides ? Silver, copper, zinc and gold surfaces all prevent bacterial and/or fungi growth. I can personally testify that colloidal silver solutions kill many cold and other infections internally and is completely safe. You can, of course, believe what you want, and take the government masters at their word every day of your life without question, but please, at least first read the article above concerning the arbitrary and capricious reinterpretations and unequally applied burden placed on this company before calling people “borderline retards”.
You need to look at the names you are calling people as it seems you know nothing about the medicinal properties of silver.. It heals, cleans and can be used medicinally to cure many ailments . Maybe the EPA had better start working for us instead of the deep state who are trying to kill us to reduce the population. A whole lot of us are onto the deep state agendas and will NOT let them ruin our country. There is a lot more of us than there is of them. There is room for all!
You are correct that nanosilver has been classified as a pesticide under FIFRA since 1954. It is only so when used as an antimicrobial otherwise is is regulated under TSCA. However, Berkey states their Black Berkey filters clean water by trapping the bacteria instead of destroying or inhibiting bacterial growth. What are your thoughts?
By that logic, wouldn't silver jewelry have to be classified as pesticides?
So upset I cannot purchase filters for my 2 Berkey Water purifiers.
Can we as owners file a lawsuit too?
Around here they're testing municipal water, and finding it unacceptable, mostly because of contamination from chemical runoff.
Suddenly, they are attacking Berkey, a USA made company, while allowing similar filters that are made in other countries to be sold.
I would speculate that our government is about to "manage" our water - for our own good and to save the planet. I also suspect that they may test and outlaw private wells, using the same "logic" they're using to decimate Berkey.
I don't trust the reasoning behind conspiracy theories, but right now I don't trust our government, either, so I'm going to annoy my congressional representative with a letter, and a yowl, of protest. I suggest that everyone else who is as annoyed and concerned as I do the same.
Just curious, does the EPA require a warning on, or regulate silver coinage? Same question for ALL electronic devices, tableware, jewelry, mirrors, etc, etc, etc.
Pound sand epa.
I'm sure, though could be wrong, that it's all about the form of it, and how it's used. Silver in electronics and jewelry is not in colloidal silver form, nor is it being used in a protective/preventative way (as a pesticide).
The greater argument, IMO, is why then do other filter companies as well as the FDA use silver to prevent bacterial, fungal, viral growth and can do so without such pesticide labeling? That's the issue- in equitable application of the law/rules targeting an individual company or group of companies.
Maybe look into making them as something else small livestock water filter market them outside the FDAs jurisdiction and then just explain on your website how your manufacturing process hasn’t changed only that they are no longer intended for human use I would buy livestock water filters I know and trust I think a lot of the freethinkers using your product would also catch on rather quickly
As the granddaughter of a no nonsense veterinarian, I like the way you think!
We will be praying for you guys. It's truly heartbreaking that our government seems determined to kill us all. The real pesticides are in our water, not your wonderful filters. As this moves along please let us know what we can do to help. Thank you.
Effectively, the EPA is trying to label the silver in the filter as a pesticide?? This all sounds an awful lot like the 2020-2022 smear campaign against Ivermectin. The government simply wants to make it impossible for the American people to have access to safe and effective (and cheap) health products. Better that we should all be sick all the time and dependent on expensive pharmaceuticals. No thanks!
Bingo. Our water is an easy way to poison us over time and keep us unhealthy. Exactly what the PharmAnimals wants with every single one of us and their payments and bribes to the politicians ensure they can.
The Banking system is behind this nonsense they have an agenda to fulfill. I hope you win this case. And safe lives.
Follow the money trail! See “who’s paying who” to change market distribution, and has enough inside influence (And $) to convince Key people in the EPA to Twist law and policy.......as well as Webster’s dictionary!
Just another way to take something natural off the market to try and keep Big Pharma from losing out..
The EPA is ABSURD... Did the person who insisted on labeling the Berkey [mechanical filter products as a “pesticide device”]... take an IQ test and fail???? Maybe someone 'intelligent' at the EPA should contact their HR department and find out and review their hiring requirements. When I pick up a can of black widow spray, it's to kill the nasty spider, before it bites me (no offense to all you arachnoid lovers)... that's a pesticide device!
Good for you, I pray you are successful and God exposes the truth of the EPAs motivation!
Seems like CDC only do things to damage the health of the citizenry. Why? Because they are set on the idea of population reduction.
Absurd is an understatement! I knew deep down that our water systems/filtration systems would be next on the chopping block. I seriously feel angry and mad at the same time. My family has 2 Berkey systems and have been a loyal and happy customer for almost 10 years now. Implementing these corrupt measures on a long standing reputable business is very disappointing from the EPA. Praying this will not hold up.
Please keep fighting for your rights and this incredible set of products.
Is there any action we can take as consumers to help?
How can we help you Berkey?
Hi Kathleen -
We appreciate you asking, and at this time it's just a wait and see until this gets resolved in court.
Thanks
Dan
We the people need to flood our local senator and congressman’s offices and demand it to stop.
Once again the alphabet organization of the government has overstepped their boundary. They seem hell bent on destroying businesses especially honest ones all the while corrupt businesses get away with breaking every rule and never getting punished for it.
The plan is to kill the americans.
The EPA needs to devote their time and resources to prosecuting the companies who have polluted our water ways and funding the necessary upgrades to municipality water systems to remove the forever chemicals in addition to developing a solution for homes with well water systems. Clean water is paramount to the continuity of human life.
What an outrageous act by EPA. Unfortunately they are only doing what they've always done - prevent useful products and promote poisons. This lawsuit should not have to be be undertaken, and is a waste to your / our resources. Wishing you great success.
Thank you for alllll your efforts and your fabulous, most effective water purifier - We've been using one for over 10 years.