James R. Wheaton (115230)
Iryna A. Kwasny (173518)		
Megan L. Evart (218700)
Richard C. Young (215407)	
ENVIRONMENTAL LAW FOUNDATION
1736 Franklin Street, 9th Floor	
Oakland, CA 94612			
Telephone:  	(510) 208-4555
Facsimile:	(510) 208-4562


Philip Shakhnis (199461)
ENVIRONMENTAL LAW FOUNDATION
3520 Ocean Park Blvd., Suite 300
Santa Monica, CA 90405
Telephone:	(310) 450-7226
Facsimile:	(310) 450-7227


Attorneys for Plaintiff ENVIRONMENTAL LAW FOUNDATION


	SUPERIOR COURT OF THE STATE OF CALIFORNIA

	COUNTY OF SAN FRANCISCO

_________________________________________

ENVIRONMENTAL LAW FOUNDATION, on behalf of the general public,


				Plaintiff,


	vs.

GLACIER WATER SERVICES 
  INTERNATIONAL, INC. a.k.a. GLACIER WATER SERVICES, INC. , and DOES 1-100,
Defendants. __________________________________________ Case No. CGC-02-415516 COMPLAINT FOR RESTITUTION AND INJUNCTIVE RELIEF Jury Trial Requested


Plaintiff, the Environmental Law Foundation ("ELF"), brings this action on behalf of the general public and, on information and belief, hereby alleges:

INTRODUCTION

1. This action challenges the sale by Defendant Glacier Water Services International, Inc. ("Glacier") to California consumers of vended water that violates California state law. Glacier water vending machines ("machines") frequently contain a group of harmful contaminants known as total trihalomethanes ("THMs") at levels that violate California law. California law mandates that vended water shall not contain more than 10 parts per billion ("ppb") of THMs. Cal. Health & Safety Code 111080(b). ELF found that those Glacier vended water machines ("machines") tested for THMs exceed the state 10 ppb standard more than one-third of the time.

2. THMs are a group of harmful chemicals produced as a byproduct of treating drinking water with chlorine. At least 25 major epidemiological studies have been conducted that provide strong evidence of elevated rates of multiple internal human cancers from exposure to THMs. Mounting evidence has also shown that THMs also have adverse reproductive effects, such as increased risks for birth defects, miscarriages, and low birth weight. See Is Water from Vending Machines Really "Chemical-Free"?, Environmental Working Group and Environmental Law Foundation Report, December 2002 ("Report").

3. Defendant Glacier owns and operates more than 7,000 vended water machines in California. Glacier machines are connected to the municipal water source at each retail location. 4. In 2002 ELF and Environmental Working Group ("EWG") conducted a study of vended water dispensed by 274 Glacier machines in nine urban counties in California ("the Study"). The Study found that water from 33.7 percent of Glacier machines tested exceeded the statutory limit for THMs of 10 ppb, with 16.4 percent of the machines having THM levels at least twice the state standard. In some samples the concentrations of THMs were as much as seven times higher than the state standard.

5. Plaintiff ELF is entitled to relief to, inter alia, compel Defendant to sell vended water only if such water does not exceed the standards for THMs established by law, to provide restitution to purchasers of Defendant's vended water, and to disgorge all monies acquired by Defendant by means of its unlawful and fraudulent business practices.

JURISDICTION AND VENUE

6. This Court has jurisdiction over all causes of action asserted here pursuant to the California Constitution, Article VI, Section 10, because this case is not a cause given by statute to other trial courts.

7. This Court has jurisdiction over the named Defendant because the Defendant is a corporation doing sufficient business, and having sufficient minimum contacts with California or otherwise intentionally availing itself of the California marketplace through the production, promotion, sale, marketing, and distribution of its products and services in California, to render the exercise of jurisdiction by the California courts permissible under traditional notions of fair play and substantial justice.

8. Venue is proper in this Court because some of the violations asserted herein arose in San Francisco.

PARTIES

9. Plaintiff ENVIRONMENTAL LAW FOUNDATION is a California nonprofit organization founded on Earth Day in 1991. ELF has a long-standing interest in reducing health hazards to the public posed by toxic chemicals. ELF is dedicated to the preservation and enhancement of human health and the environment. ELF brings this action "on behalf of the general public" pursuant to Cal. Bus. & Prof. Code 17204. Neither ELF not any of its directors or employees alleges any harm or damages whatsoever regarding themselves, individually.

10. Defendant GLACIER WATER SERVICES INTERNATIONAL, INC. (aka GLACIER WATER SERVICES, INC.) sells drinking water to consumers dispensed through its internally developed and manufactured self-service water vending machines. Defendant is incorporated in Delaware with its principal executive offices located at 2651 La Mirada Drive, Suite 100, Vista, California, 92083-8435.

11. The true names and capacities of defendants sued herein under California Code of Civil Procedure 474 as DOES 1 through 100, inclusive, are unknown to Plaintiff, who therefore sues these defendants by such fictitious names. Plaintiff will seek to amend this Complaint and include these Doe defendants' true names and capacities when they are ascertained. Each of the fictitiously named defendants is responsible in some manner for the conduct alleged herein.

STATUTORY FRAMEWORK
Unfair Competition Law (Bus. & Prof. Code  17200 et seq.) 

12. The Unfair Competition Law ("UCL"), codified at Bus. & Prof. Code 17200 et seq., makes it unlawful for a business to engage in a "business act of practice" that is "unfair" or "unlawful" or "fraudulent."

13. An "unlawful" business activity includes "anything that can properly be called a business practice and that is at the same time forbidden by law." Barquis v. Merchants Collection Assn. (1972) 7 Cal.3rd 94, 111. Prohibited "unlawful" practices are any practices forbidden by law whether civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made. Farmers Ins. Exchange v. Super. Ct. (1992) 2 Cal.4th 377, 383.

14. A business practice is "fraudulent" within the meaning of 17200 et seq. if members of the public are likely to be deceived by the business practice. Bank of the West v. Super. Ct. (1992) 2 Cal. 4th 1254; Committee on Children's Television v. General Foods Corp. (1983) 35 Cal. 3rd 197.

15. The UCL authorizes injunctive relief to prevent unlawful, unfair, or fraudulent business acts or practices, and both restitution and disgorgement of money or property wrongfully obtained by means of such unfair competition. Bus. & Prof. Code 17203.

16. An action under the UCL may be brought by any person, corporation or association or by any person acting for the interests of itself, its members, or the general public. Bus. & Prof. Code 17204.

Deceptive, False, and Misleading Advertising (Bus. & Prof. Code  17500 et seq.)

17. Section 17500 et seq. provides that "[i]t is unlawful for any person,...corporation,...or any employee thereof with intent directly or indirectly to dispose of real or personal property or to perform services, ... or to induce the public to enter into any obligation relating thereto, to make or disseminate ... before the public in this state...any advertising device...including over the Internet, any statement....concerning that real or personal property or those services, ... concerning any circumstances or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading[.]"

18. Sections 17535 and 17535.5 authorize injunctive relief to prevent unlawful, unfair, or fraudulent business acts or practices, and both restitution and disgorgement of money or property wrongfully obtained by means of such unfair competition.

19. An action under 17500 et seq. may be brought by any person, corporation or association or by any person acting for the interests of itself, its members, or the general public. Bus. & Prof. Code 17535.

Vended Water Law (Cal. Health & Safety Code  111070 et seq.)

20. Vended water is any water that is dispensed by a water-vending machine that is not placed by a bottler in sealed containers, and that is dispensed by a water-vending machine for drinking, culinary, or other purposes involving a likelihood of the water being ingested by humans. Health & Safety Code 111070(b).

21. Health & Safety Code 111180 states that "vended water, the quality of which is below the quality required by this article, shall be labeled with a statement of substandard quality[.]"

22. Health & Safety Code 111080 (b) provides that "vended water shall not exceed 10 parts per billion of total triahalomethanes [sic] ... unless the department establishes a lower level by regulation."

23. Health & Safety Code 111090 (e) requires that water vending machines "be designed so that all treatment of the vended water by distillation, ion exchange, filtration, ultraviolet light, reverse osmosis, mineral addition, or any other acceptable process is done in an effective manner."

24. Health & Safety Code 111095 mandates that "[i]t shall be unlawful to operate a...water-vending machine...in violation of the minimum health standards of this article."

FACTUAL BACKGROUND

25. Defendant Glacier owns and operates more than 7,000 vended water machines at grocery stores and other retail outlets in California - over 80% of all vended water machines in the state. Glacier designs and manufactures its own vended water machines, which are connected to the municipal tap water source at each retail location.

26. Total trihalomethanes are a class of harmful chemicals that are byproducts of treating drinking water with chlorine. A compelling body of scientific research has found associations between increased risk of multiple types of cancer, miscarriages, and birth defects and drinking water contaminated with THMs. For instance, in a study of 4,028 pregnancies among Iowa women, researchers found low newborn weight (intrauterine growth retardation) for babies whose mothers drank tap water containing at least 10 ppb of THMs through pregnancy.

27. On August 28, 1998, a study conducted by the Los Angeles Agricultural Commissioner/Weights and Measures Department through its Environmental Toxicology Bureau ("1998 LA study") publicly revealed for the first time that Defendants had violated state law by selling vended water contaminated with THMs in excess of the state standard of 10 ppb for such substances. The 1998 LA study found that 38% of all machines tested dispensed water with THMs at levels above the state standard.


28. In a follow-up study conducted in 2000 by the Environmental Toxicology Bureau a year after state health officials from the California Department of Health Services and the vended water industry jointly promised to "establish strategies" to address problems with vended water the study sampled machines at many of the same Los Angeles county locations as in the 1998 study and found that 33 percent of machines tested still violated the state standard for THMs.

29. During the summer of 2002, EWG and ELF collected water samples from 274 Glacier vending machines in nine urban California counties - Los Angeles, Riverside, San Diego, Orange, Santa Clara, Alameda, Contra Costa, San Francisco, and Sacramento - covering the state's eight largest metropolitan areas.

30. Scientific analysis of the Glacier machine water samples by the laboratory of the Los Angeles County Environmental Toxicology Bureau found that water from 33.7 percent of the machines exceeded the state standard for THMs of 10 ppb, with 16.4 percent of the machines selling water that had THM levels at least twice the state standard. In some samples the concentrations of THMs were as much as seven times higher than the state standard.

FIRST CAUSE OF ACTION
(Violation of Bus. & Prof. Code  17200 - Unlawful Business Practices)
(Predicated on Health & Safety Code  111080(b))	

31.  Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 30 of the Complaint.

32. Health & Safety Code 111080(b) states that "vended water shall not exceed 10 parts per billion of total triahalomethanes[sic][.]"

33. Section 17200 of the California Business and Professions Code provides that "unfair competition shall mean and include any unlawful...business act or practice." (emphasis added)

34. By selling water from its vended water machines with THMs levels exceeding the statutory standard of 10 ppb, Defendant has engaged, and on information and belief, continues to engage in unlawful business practices constituting unfair competition in violation of Section 17200 et seq. of the California Business and Professions Code.

	SECOND CAUSE OF ACTION
	(Violation of Bus. & Prof. Code  17200 - Unlawful Business Practices)
(Predicated on Health & Safety Code  111090(e))


35. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 34 of the Complaint.

36. Health & Safety Code 111090(e) states that water vending machines shall be designed so that all treatment of the vended water by distillation, ion exchange, filtration, ultraviolet light, reverse osmosis, or any other acceptable process is done in an effective manner.

37. Defendant's "State-of-the-Art Filtration System," comprised of a combination of micron filtration, reverse osmosis, carbon absorption, and ultraviolet sterilization, is not being "done in an effective manner" as demonstrated by the fact that water dispensed from Glacier Water vending machines contain levels of THMs exceeding the statutory standard of 10 ppb.

38. Section 17200 of the California Business and Professions Code provides that "unfair competition shall mean and include any unlawful...business act or practice." (emphasis added)

39. Because Defendant's vended machine filtration system is not effective in reducing THMs levels below the statutory standard of 10 ppb, Defendant has engaged, and on information and belief, continues to engage in unlawful business practices constituting unfair competition in violation of Section 17200 et seq. of the California Business and Professions Code.

	THIRD CAUSE OF ACTION
	(Violation of Bus. & Prof. Code  17200 - Unlawful Business Practices)
(Predicated on Health & Safety Code  111095)

40. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 39 of the Complaint.

41. Health & Safety Code 111095 states that "[i]t shall be unlawful to operate a water vending machine in violation of the minimum health standards of this article." Section 111080(b) states that vended water shall not exceed 10 parts per billion of THMs.

42. Section 17200 of the California Business and Professions Code provides that "unfair competition shall mean and include any unlawful...business act or practice." (emphasis added)

43. By selling water from its vended water machines with THMs levels exceeding the statutory standard of 10 ppb, Defendant has engaged, and on information and belief, continues to engage in unlawful business practices constituting unfair competition in violation of Section 17200 et seq. of the California Business and Professions Code.

	FOURTH CAUSE OF ACTION
	(Violation of Bus. & Prof. Code  17200 - Fraudulent Business Practices)	


44. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 43 of the Complaint.

45. Section 17200 of the California Business and Professions Code provides that "unfair competition shall mean and include any...fraudulent business act or practice." (emphasis added)

46. Since January 1, 2001, Defendant has engaged in fraudulent business practices by virtue of at least three separate and distinct claims made by Glacier that are untrue and/or misleading:

(a) On its website, Glacier claims the "Glacier Water is the #1 brand in vended water and the source for safe, chemical-free drinking water" (emphasis added);

(b) On its website, Glacier claims that "[t]he Reverse Osmosis membrane in each Glacier Water machine typically removes 97% of all contaminants in tap water," and further states that "[s]ince many city or state municipalities provide data on their tap water levels for many types of elements. [sic] Customers can check their providers [sic] list then subtract 97%. This would give approximate amounts of the various elements in Glacier water"; and

(c) Glacier service technicians regularly adhere a sticker to the outside of Glacier machines which reads "Water Quality Seal - Inspected and Passed".


47. In fact, Glacier cannot state with accuracy that water dispensed from its machines is "chemical-free" as demonstrated by the fact that, inter alia, water dispensed from Glacier machines contain levels of THMs exceeding the statutory standard of 10 ppb.


48. In fact, more than two-thirds of machines analyzed in the Report violated Glacier's claim to reduce contaminants by 97% for THMs.


49. In fact, by its own admission on its website Glacier service technicians do not test water dispensed from Glacier machines for any contaminants except for chlorine and total dissolved solids, thus Glacier misleads consumers and the general public by adhering stickers to the outside of Glacier machines which read "Water Quality Seal - Inspected and Passed."


50. Because members of the public are likely to be deceived by virtue of the business practices described above into believing water dispensed from Defendant's vended machines contains no harmful contaminants or that at least 97% of harmful contaminants in tap water have been removed from the water dispensed from Glacier machines, Defendant has engaged in fraudulent business practices constituting unfair competition in violation of Section 17200, et seq, of the California Business and Professions Code.


FIFTH CAUSE OF ACTION
(Violation of Bus. & Prof. Code 17500 et seq. - False Advertising)


51. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 50 of the Complaint.

52. Section 17500 et seq. provides that "[i]t is unlawful for any person, firm, corporation, or association, or any employee thereof with intent directly or indirectly...to perform services, professional or otherwise, or anything of any nature whatsoever or to induce the public to enter into any obligation relating thereto, to make or disseminate or cause to be made or disseminated before the public in this state...any advertising device...including over the Internet, any statement....concerning...services, professional or otherwise, or concerning any circumstances or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading[.]"

53. Defendant has intended and continues to intend to perform the service of dispensing water from its vended water machines to consumers in California.

54. Defendant publically disseminates advertising on its machines and on its website which (1) contains statements which is untrue or misleading (2) which Defendant knew, or in the exercise of reasonable case, should have known, were untrue or misleading, and (3) which concerned the performance of services.

55. On information and belief, since January 1, 2001 or earlier, Defendant has engaged in fraudulent business practices by virtue of at least three separate and distinct claims made by Glacier that are untrue and/or misleading:
(a) On its website, Glacier claims the "Glacier Water is the #1 brand in vended water and the source for safe, chemical-free drinking water" (emphasis added);
(b) On its website, Glacier claims that "[t]he Reverse Osmosis membrane in each Glacier Water machine typically removes 97% of all contaminants in tap water," and further states on its website that "[s]ince many city or state municipalities provide data on their tap water levels for many types of elements. [sic] Customers can check their providers [sic] list then subtract 97%. This would give approximate amounts of the various elements in Glacier water.";
(c) Glacier service technicians adhere a sticker to the outside of Glacier machines which reads "Water Quality Seal - Inspected and Passed";

56. In fact, Glacier cannot state with accuracy that water dispensed from its machines is "chemical-free" as demonstrated by the fact that, inter alia, water dispensed from Glacier machines analyzed in the Report contain levels of THMs exceeding the statutory standard of 10 ppb.

57. In fact, more than two-thirds of machines analyzed in the Report violated Glacier claim to reduce contaminants by 97% for THMs.

58. In fact, by its own admission on its website Glacier service technicians do not test water dispensed from Glacier machines for any contaminants except for chlorine and total dissolved solids, thus Glacier misleads consumers and the general public by adhering stickers to the outside of Glacier machines which read "Water Quality Seal - Inspected and Passed."

59. Defendant's representations of fact on its website (www.glacierwater.com) and on its machines touting the quality of Glacier's vended water are false and misleading. Defendant either knew or reasonably should have known that the representations such as described above, disseminated over the Internet and through other media, are untrue and misleading. At a minimum, they have the capacity, likelihood, or tendency to deceive and confuse customers and the general public.

60. Defendant has thereby engaged in false advertising within the meaning of Section 17500, et seq., of the California Business and Professions Code.


PRAYER FOR RELIEF


WHEREFORE, Plaintiff, on behalf of the general public, prays for judgment and relief on all causes of action as more specifically detailed in each cause of action against defendants as follows:

1. That the Court, pursuant to Bus. & Prof. Code 17203 and 17535, preliminarily and permanently enjoin Defendant from:
(a) selling vended water from Defendant's machines in violation of the provisions of Health & Safety Code 111070 et seq.;
(b) selling vended water from Defendant's machines that do not reduce tap water contaminants by 97%;
(c) selling vended water from Defendant's machines that is not "chemical-free"; and
(d) adhering stickers on Defendant's machines representing that water dispensed from those machines have been tested and found in compliance with all applicable standards unless Glacier first tests water dispensed from such machines for compliance with such standards.

2. An order requiring Defendant, its agents, employees, assigns, and all persons acting in concert or participating with them:
(a) to identify, locate, and repay to each consumer of vended water the full amounts of monies improperly acquired from that consumer, with the Court retaining jurisdiction to supervise Defendant's effort to ensure that all reasonable means are used to comply with the Court's directives;
(b) to disgorge all monies acquired by means of any act found by this Court to be an unlawful or fraudulent business practice under Bus. & Prof. Code 17200 et seq. and in accordance with applicable law under Kraus v. Trinity Management Services, Inc. (2000) 23 Cal. 4th 116, Cortez v. Purolator Air Filtration Products Company (2000) 23 Cal. 4th 163, Fletcher v. Security Pacific National Bank (1979) 23 Cal. 3rd 442, People v. Thomas Shelton Powers (1992) 2 Cal. App. 4th 330, and People ex rel. Smith v. Parkmerced Co. (1988), 198 Cal. App. 3rd 683;
(c) to finance a program of mandatory unannounced state inspections of water vending machines throughout California;
(d) to require Defendant to take and analyze water samples from its machines to assure that the treatment processes performed by its machines are effective at achieving the standards required under Health & Safety Code 111070 et seq.; and
(e) to require Defendant to label those machines dispensing water with THM levels exceeding the statutory standard with a statement of substandard quality.

3. Reasonable attorneys' fees and costs of this suit;

4. Such other and further relief as the court may deem necessary or appropriate.



DATED:December 10, 2002			


Respectfully Submitted,
By:                                                       
James R. Wheaton
Megan L. Evart
Philip Shakhnis
Richard C. Young
Environmental Law Foundation	
Attorneys for Plaintiff

ENVIRONMENTAL LAW FOUNDATION