Nanosilver, an antibacterial chemical additive that is currently incorporated into approximately 400 commercial and consumer products including everything from washing machines to electric shavers, clothing, bed and bath linens, medical and hospital equipment, cosmetics, baby bottles, children’s toys, keyboards, paints and coatings, and food containers could soon face careful scrutiny and additional regulation by the EPA. That’s because on December 16, 2014, several consumer groups filed suit against the EPA,1 seeking to have the United States District Court for the District of Columbia force the EPA to rule on a petition filed in 2008. That petition, filed by the same consumer groups that filed the lawsuit, urged the EPA to test and then regulate the production, distribution, sale and disposition of nanosilver.

The consumer groups claim that nanosilver’s antibacterial and antimicrobial properties make it a “pesticide” under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), thus subjecting it to EPA registration and regulation. In addition to relying on FIFRA, the groups claim that the federal government can and should regulate nanosilver under the Food Quality Protection Act, Endangered Species Act and National Environmental Policy Act. The groups allege that nanosilver, like all nanomaterials, has the potential to behave drastically differently than its “normal-sized” counterpart. For example, the groups claim that:

[A] gold wedding ring is yellow in color, but gold nanoparticles appear red. Carbon (like graphite in a pencil) is relatively soft; but carbon in the form of carbon nanotubes (nanoscale cylinders made of carbon atoms) is a hundred times stronger than steel. An aluminum soda can does not burn; however, aluminum nanoparticles explode when used as rocket fuel catalysts.

The consumer groups claim that since nanosilver’s effects on the human body, animals and the environment remain unknown, the EPA should take regulatory action. If the court agrees, the EPA may begin promulgating regulations concerning nanosilver and other nanomaterials. Manufacturers, suppliers and others in the nanosilver and nanomaterial supply chain should be aware of the potential for regulatory action.