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Thread: Cease and Desist order

  1. Back To Top    #1

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    Cease and Desist order

    Get this ... I just received a Cease and Desist order from a manufacturer of a copper sulfate product, basically directing me to pull a page off my web site because I'm saying:

    -copper sulfate is ineffective at eliminating atmospheric contaminants and organic waste in swimming pool water;

    - algae is "good": it indicates something's wrong with the disinfection; it's not because pool water is crystal clear that it is automatically pathogen-free;

    - the 0.6 ppm free chlorine these products suggest is not enough, especially in outdoor stabilized pools;

    - use too much CuSO4 and you'll possibly get green hair and staining;

    - if you really want to use an algicide, use a polyquat instead of a linear quat or copper sulfate;

    - as for the claims these products "stabilize the pH", my research shows that, if you follow the dosing instructions, the TA of a 10,000 liter pool will increase by 1 ppm, indicating that the CuSO4 is *probably* mixed with sodium bicarb; mixing the product with vinegar produces heavy foaming and gas, and you're left with blue crystals only. I'm not stating these products are cut with sodium bicarb, I'm just describing my findings.

    - CuSO4 is toxic for fish;

    - Maintaining a pool is not expensive, neither copper, silver or any other metals shouldn't be in your pool water.

    The vendor is saying my blog entry causes them much harm and predudice, they're evaluating the damages, I'm publishing false information, and they're ordering me to stop damaging their reputation "either directly or indirectly"!

    I have 5 days to comply or ...face a lawsuit!

  2. Back To Top    #2

    Re: Cease and Desist order

    wow. that stinks.

    8000 gallon 20' x 48" round vinyl frame pool, 12" sand filter (don't have the specs on the pump), TF100 test kit
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    Re: Cease and Desist order

    Quote Originally Posted by The Mermaid Queen
    wow. that stinks.
    Yup, as if anything I was saying was false and/or misleading. Everything I say I have documents
    and studies to support, it's a bit like if Helleman Mayo sues me for saying that "mayonaise based products may be fattening if you eat too much", the blog entry is generic, I'm saying "copper sulfate is the main ingredient found in products such as MagicProductOne, SomeProductTwo" etc... I'm not targetting them directly but rather the active ingredient.

    I don't want to say too much at this point, I'll keep you posted.

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    Re: Cease and Desist order

    In my opinion, you have a few options. Note that this is my opinion, and I am NOT a lawyer. Nothing I say should ever be construed as legal advice.

    First and foremost, you probably should consult a lawyer. They seem to know some of the best ways through the law.

    1 - You can do nothing, and most likely face a lawsuit.
    2 - You can pull your page, and hope not to face a lawsuit.
    3 - You can make certain that any information that you disseminate is either backed up by solid research, and annotate the data with the research source, and make sure that any interpretation of that, or other data is plainly indicated as your opinion. Everyone is entitled to an opinion, even me; See my opening statement.

    You may even have a viable countersuit.

    Again, I think you should seek experienced legal advice.
    [center:1kpalu48]Helpful Links: Pool School | CYA/Chlorine Chart | Pool Calculator[/center:1kpalu48]

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    Re: Cease and Desist order

    They are either bluffing with the threat or are hoping that you will be scared off by the cost of defense. You should contact an attorney for the best approach. The following is just my opinion and obviously not legal advice.

    As for your statements on your blog, all you have to do is point to scientific or other official references supporting those facts so I would just do that and send that back to them and welcome the humiliation they will receive in court (if they proceed) that will be done in a public forum (i.e. court proceedings are generally part of the public record) as well as a possible counter-suit you can file for a frivolous lawsuit (you likely won't win on that, however, since the bar for frivolous is ridiculously high) as well as bringing their attorneys to the professional conduct board of their bar association in their state for not doing proper due diligence (i.e. not being competent) and assisting a client in extortion (well, that's a stretch, so perhaps don't say that and you probably won't get a misconduct ruling in any event). You could also update your blog with these references (or others you find) as well. It only strengthens your argument.

    -copper sulfate is ineffective at eliminating atmospheric contaminants and organic waste in swimming pool water;

    As shown in this link or this link as well as in most any table of standard reduction potentials, copper ions are not strong oxidizers as the following half-reaction demonstrates

    Cu2+ + 2e- ---> Cu(s) ..... E0 = +0.337V

    and its ranking among other substances shows that it falls well below ozone (+2.07V), chlorine (+1.36V; hypochlorous acid is +1.482V) and even dissolved oxygen (+1.23V) as well as non-chlorine shock which is potassium monopersulfate (+1.85V), especially at the very low concentrations in pool water.

    As for atmospheric contaminants, I'm not sure what you mean by that. Do you mean in terms of getting rid of disinfection by-products? I'd just avoid that statement as the more general one about copper not being an oxidizer takes care of its relative lack of reactivity with a large variety of common organic and inorganic compounds found in pools.

    HOWEVER, unless they claimed that their copper sulfate was an oxidizer or didn't require use of any oxidizer (including chlorine), then you shouldn't be making your statement. It's not false, but it is misleading. You could change it to say that the copper isn't an oxidizer so still requires the use of an oxidizer to eliminate bather waste (i.e. it doesn't completely eliminate the need for chlorine for sanitation or for chlorine or non-chlorine shock for oxidation).

    - algae is "good": it indicates something's wrong with the disinfection; it's not because pool water is crystal clear that it is automatically pathogen-free;

    I would not say that algae is "good". It's unsightly and slippery so can lead to falls. It's not "good". It's just not unsanitary by itself -- that is, it is not a pathogen. It's also not good to use as an indicator for water quality since water may be unsanitary yet still not develop algae. I wouldn't use an argument of not using an algicide so that you can tell if water has gone bad. You should test the water for Free Chlorine (FC), not use algae as an indicator.

    - the 0.6 ppm free chlorine these products suggest is not enough, especially in outdoor stabilized pools;

    You won't be able to effectively argue this one. It takes a very low level of chlorine to kill most pathogens. Since the copper ion is killing algae, the water can be quite sanitary at 0.6 ppm. If the CYA level is too high, then this low FC level may result in slower oxidation, but that goes down the rat hole of trying to explain the chlorine/CYA relationship such as with this paper and this one showing the slowdown of oxidation of ammonia and an organic (monochlorodimedone).

    A low FC has the potential to "run out" locally under higher bather load, but this is unlikely in a residential pool. It may also be difficult to maintain that chlorine level since it will drop in sunlight, but again, hard to argue effectively especially if an automated dosing system or SWG is being used. The German DIN 19643 standard uses 0.3 to 0.6 ppm FC with no CYA, for example, though obviously automated dosing systems are involved in that case.

    - use too much CuSO4 and you'll possibly get green hair and staining;

    They may claim that their product contains sequestrants that prevent too much free copper ion from being in the water and therefore would prevent green hair or staining. They may also claim to limit the amount of copper in the water so that it won't stain. All you could argue here is the concentration of copper that can stain at various pH levels (forming copper oxide or copper hydroxide, etc.) or TA (forming copper carbonate) or CYA levels (copper cyanurate).

    You can refer to the large variety of copper stain removers on the market, though again that doesn't prove that their product will stain. Many websites will talk about copper staining, but I'm not sure where you will find a definitive source that gives details about the levels of copper that can produce staining and then tie that back to the recommended levels for this particular product about which you are writing.

    Perhaps linking to the hundreds of websites that talk about copper staining should be sufficient -- let these others do your arguing for you -- you are just a messenger and can say "may result in staining" as referred do in the following websites...

    - if you really want to use an algicide, use a polyquat instead of a linear quat or copper sulfate;

    Copper ions are a very effective algicide, even more effective than PolyQuat or virtually any other algicide suitable for pool use (except a sufficiently high FC/CYA ratio). So I would rephrase what you wrote by saying that if you want to avoid the possible side effects of copper sulfate, then consider using PolyQuat algicide instead. Quite frankly, if copper ions didn't have side effects, we'd probably recommend it so that people could have even lower chlorine levels in their residential pools (but of course it does have potential side effects so we use chlorine for algae control in addition to sanitation).

    - as for the claims these products "stabilize the pH", my research shows that, if you follow the dosing instructions, the TA of a 10,000 liter pool will increase by 1 ppm, indicating that the CuSO4 is *probably* mixed with sodium bicarb; mixing the product with vinegar produces heavy foaming and gas, and you're left with blue crystals only. I'm not stating these products are cut with sodium bicarb, I'm just describing my findings.

    You need to do more than just measure a TA difference. You should dose a large tub with a scaled down version of their product and note the pH change when adding an acid or a base. Then repeat with the same water without their product. This would demonstrate that the product has a negligible affect on pH buffering. Now as far as pH stability is concerned, that's harder to prove quickly since you'd have to show that their product didn't do something strange such as reduce carbon dioxide outgassing which would normally cause the pH to rise.

    - CuSO4 is toxic for fish;

    See the environmental data for copper sulfate pentahydrate and copper sulfate where it says the following:

    The substance is very toxic to aquatic organisms. Bioaccumulation of this chemical may occur along the food chain, for example in fish. It is strongly advised that this substance does not enter the environment.
    I would also look up their specific product in the PAN (pesticide) Database. You can find copper sulfate anhydrous, copper sulfate pentahydrate and others where it lists "moderate to high" toxicity for fish.

    You can also argue that copper ions persist while chlorine (which can also be toxic to fish) does not.

    - Maintaining a pool is not expensive, neither copper, silver or any other metals shouldn't be in your pool water.

    I think you meant "should" rather than "shouldn't". This is a blanket statement that is best avoided. It is better to simply state the facts of the pros and cons of using copper ions. It's perfectly fine for someone to use a copper product if they understand the risks. It is an EPA-approved algicide (not a disinfectant, however).

    Now if the manufacturer did not disclose the risks of staining or the toxicity to fish, etc. then that could be intentional withholding of materially important information a consumer needs to know for a purchase decision (i.e. fraud), but virtually no manufacturer of copper ion or metal ionization systems does that. It doesn't make it right, but I don't think it's a fight you want to make as it would get rather costly. Many of these sorts of products simply claim to "use as directed" where the directions indicate specific dosages and usually say to keep the pH within a certain range -- the combination of which will avoid staining. So they are technically correct and are just leaving out the risk of what happens if the concentration rises (say, from adding more product in maintenance doses and not measuring with a good test kit) or if the pH, TA or CYA levels get too high.

    Richard
    16,000 gallon outdoor in-ground 16'x32' plaster pool; Pentair Intelliflo VF pump; Pentair IntelliTouch i9+3s control system; Jandy CL-340 square foot cartridge filter
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  6. Back To Top    #6

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    Re: Cease and Desist order

    How much traffic does your blog generate?

    Scott
    Owner of - PoolGuyNJ LLC
    Expert Pool and Spa Repairs, Renovations, and Augmentation. Helping people decide what is the right gear for meeting their needs. Expectations Set, Expectations Met, No Surprises.

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    Re: Cease and Desist order

    Quote Originally Posted by PoolGuyNJ
    How much traffic does your blog generate?
    Scott
    Nov 2009: 471
    Dec 2009: 1265
    Jan 2010: 526

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    Re: Cease and Desist order

    Quote Originally Posted by chem geek
    They are either bluffing with the threat or are hoping that you will be scared off by the cost of defense. You should contact an attorney for the best approach. The following is just my opinion and obviously not legal advice.
    Richard I want to thank you very much for your generous reply.

    I've looked back on the reseach I had done and most of the toxicity / staining information comes directly from documents they've sent to the EPA (you can get them on the EPA site) and from Health Canada (labeling requirements - also publicly available). My blog entry discusses copper sulfate per se, the stuff you find in pool products but also the stuff you can get at gardening places and hardware stores.

    For the TA bit I've done something similar to what you described.

    Englsh is not my primary language (French is - and so's the blog) - my first post what typed up rather quickly, I meant to say that algae was a good indicator of poor disinfection.

    I can't really comment more until I respond to them - thanks again for the kind reply.

    Paul

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    Re: Cease and Desist order

    I'd really like to know a few things:

    What company sent it?

    What percentage of those 2000 hits in a 3 month period were regular visitors?

    What percentage market share does this company claim in the French Canadian market space? What percentage are they claiming to have lost as a result of the blog? 2000 hits in a 3 month span is not a lot of traffic.

    What do you suppose might happen if this company's name became known to us?
    How fast do you think we could spread the word?
    Don't you love bullies?
    What would happen to their world wide market share then?

    Scott
    Owner of - PoolGuyNJ LLC
    Expert Pool and Spa Repairs, Renovations, and Augmentation. Helping people decide what is the right gear for meeting their needs. Expectations Set, Expectations Met, No Surprises.

  10. Back To Top    #10

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    Re: Cease and Desist order

    I'm not a lawyer either but one question - do you specifically mention any of their products by name, or just the chemical name?

    I fail to see how you could "libel" a chemical!?! A chemical has no rights under the US Constitution. Your free speech does!

    Cripes, if someone could sue for "damages" because of questionable claims made about a chemical, I would think we would all have a lawsuit due to all the blame being put on CO2 for causing "global warming"! We all exhale CO2! I'm going to send letters to the Global Warmists and tell them to "cease and desist" immediately!
    27' round/4 feet deep above ground pool
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  11. Back To Top    #11

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    Re: Cease and Desist order

    Quote Originally Posted by PoolGuyNJ
    I'd really like to know a few things:
    What company sent it?
    www (dot) crystallineh2o (dot) com
    Quote Originally Posted by PoolGuyNJ
    What percentage of those 2000 hits in a 3 month period were regular visitors?
    Kind of hard to determine accurately from what I can see (and understand) reading awstats logs. These figures are to the root directory of Wordpress only, I can't determine the page views for that particular entry.
    Quote Originally Posted by PoolGuyNJ
    What percentage market share does this company claim in the French Canadian market space? What percentage are they claiming to have lost as a result of the blog? 2000 hits in a 3 month span is not a lot of traffic.
    Unknown. They'd be hard pressed to come up with numbers I think. November 2009 to February 2010 is winter, all the pools are covered in snow, probably close-to-zero sales for that period. BTW I have interviewed, and published, in a popular consumers magazine basically saying the same thing as the blog, however, and this might be important, the magazine didn't specifically mention any brands, simply saying "Many people use copper sulfate in their pools. Note that when using copper sulfate blah blah blah"

    And I'm saying, "Copper sulfate is the main ingredient found in products such as Brand A, Brand B and Brand C. Copper sulfate can cause staining blah blah blah".

    I've replaced the blog entry with a copy of their cease and desist order, advising the reader that the article and all the supporting documentation (EPA documents, Health Canada documents, MSDSs, trade magazine articles, chemistry facts, etc ) have been removed. At least the reader knows that it's not stuff I pulled out of nowhere; it's all documented.

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    Re: Cease and Desist order

    Um.... I knew all about the staining ability of copper sulfate as well as it's toxic effects long ago. It should be common knowledge.

    I worked at Frontier Village amusement park in 1979. (It's long gone, but a website lives on) There was a trout pond as well as a substantial artificial lake that featured a canoe ride. I was a canoeman. They used to put Copper Sulfate in the trout pond from time to time to keep the algae at bay. One time someone knocked the whole can in. The next morning the trout pond and the lake were a brilliant turquoise color. The trout pond and the lake were also full of dead trout - thousands of them. Not just the ones in the pond, but the escapees that had made it to the lake. We had to scoop up hundreds of pounds of dead fish. The whole park stank of fish for about a week. The paddles for the canoes were also stained a pretty turquoise color.

    Copper Sulfate is good for killing wood rot but I wouldn't want to bathe in it.

    I'd leave the cease and desist order up but post a bibliography with all your links. Anyone interested can read the facts and decide for themselves.
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