Nanomaterials are often referred to as the key technology of the 21st century. However, the effects of nanoparticles, especially in the long term, are unknown due to a lack of scientific data. This uncertainty represents a major challenge for both the legislature and the insurance industry if they play a role in regulation.

Nanotechnology

Nanotechnology encompasses the application of different products that contain tiny particles. Because of their small size, these products possess special properties. The term 'nano' refers to the microscopic size, with structures at molecular and atomic level and sizes ranging from 1 nanometre (nm) to 100nm (a nanometre is one-millionth of a metre). For example, a red blood cell is about 7,000nm thick, making it a giant in the field of nanotechnology. To illustrate this point even further, a human hair would have to be split 80,000 times to measure 1nm.(1)

The effects of nanomaterials remain unclear. For instance, there is a risk that when nanoparticles penetrate the human body (eg, through cosmetics or food) they can cross the blood-brain barrier due to their small size and lead to an increase in the risk of neurodegenerative diseases. However, such harmful effects have not yet been definitively established. While it has been established that normally harmless substances can be toxic in the nanoscopic range, it is yet to be seen whether nanoparticles have long-term carcinogenic properties which may give rise to cancer. (2)

Nanotechnology as emerging risk

Nanotechnology, in addition to genetic engineering, is a leading example of an emerging risk. These are novel, future-related risks that evolve dynamically. Emerging risks are scarcely perceptible and hardly rate in monetary value. They are primarily technical, economic, social and legal developments, resulting in a change in the risk landscape. As highly qualified specialists in risk assessment, reinsurers deal with the issue of nanotechnology as an emerging risk. The small amount of available data regarding nanoparticles complicates insurers' risk assessments and has led to calls for future-oriented coping strategies that identify, record and analyse risks and implement appropriate measures. Not all risks are insurable: a risk must be measurable and financially definable to qualify for insurance. For the calculation of the insurance premium, the extent of the damage and probability of its occurrence must be assessable. Swiss insurers generally include damage caused implicitly by nanoparticles. However, materials with nanoparticles have a greater sales volume and could become a risk for insurers because of the inherent uncertainty.

A number of liability regulations apply to risks associated with nanoparticles. For example, the Code of Obligations and corresponding labour law oblige employers to take reasonable measures to avoid occupational disease. The Federal Law on Product Safety and the Product Liability Act aim to protect consumers. Moreover, the Federal Law on Environmental Protection contains liability provisions for plant operators in case of losses due to the hazardous effects of substances. However, specific regulations for nanotechnology do not yet exist. Due to the lack of data documenting the effect of nanoparticles, additional state legislation would restrict the development of nanotechnology and impede or even halt innovation in this sector. However, insurers may require some practice for the assurance of nano risks without slowing down the development of nanotechnology. The companies might be encouraged to comply with certain codes of conduct in order to make their nano risks insurable. A presupposed measure could be risk management, which is transparent and makes information available efficiently for further research. Transparency should consist mainly in the labelling of products, so that the use of nanoparticles for workers, consumers and insurers becomes visible.(3)

Discussion

The debate in this area primarily concerns long-term damage and will eventually require government regulation, since victims (eg, workers and consumers) need protection.

Causality

The injured party must provide evidence for the causal nexus between the damage and the damaging event. For long-term damage caused by nanoparticles, the causal nexus will be difficult to establish. Damage caused by nanoparticles can create highly complex biochemical correlations, the cause of which remains uncertain. The Federal Supreme Court would have to lower the standard of evidence to overwhelming probability, which was often the case previously with regards to instances of late complications.(4)

Statute of limitation

Another point of discussion in relation to long-term damage is the statute of limitation. The Federal Council is considering a draft for an extension of the relative limitation period of one year to three years for damages and satisfaction claims in contract and tort. The absolute limitation period could be extended to 30 years. However, for relative limitation, the limitation period begins on the day on which the victim ascertained the damage and damaging person. The absolute limitation period begins on the day on which the harmful event occurred or ceased. If he damage occurs when the prescription has already expired, a major issue arises, as demonstrated by numerous asbestos cases in the past. In connection with asbestos victims, in a March 11 2014 judgment the European Court of Human Rights (ECHR) criticised the Swiss absolute limitation period. However, the Federal Council has stood by its decision despite criticism from the ECHR and doctrine.(5)

Comment

The development of nanotechnology is among the leading sciences and has great potential with various novel applications. However, this positive potential hides possible hazards which could have a significant effect on people and the environment. Therefore, research to obtain further data on nanoparticles and their effects should be supported and encouraged. In this uncertain situation, legislative regulation may affect science and the economy negatively, and other mechanisms could be preferable for the regulation of nanotechnology. Insurers could develop standards that regulate the use of nanotechnology, and could take a leading role to promote and control nanotechnology development, particularly in the area of transparency and the safe handling of nanoparticles. Nevertheless, the legislature and the courts must deal with the problem of causality and the statute of limitation.

For further information on this topic please contact Alexandra Bösch or Markus Dörig at BADERTSCHER Rechtsanwälte AG by telephone (+41 44 266 20 66), fax (+41 1 266 20 70) or email (boesch@b-legal.ch or doerig@b-legal.ch). The BADERTSCHER Rechtsanwälte AG website can be accessed at www.b-legal.ch.

Endnotes

(1) Hettich, Kooperative Risikovorsorge Regulierte Selbstregulierung im recht der operationellen und technischen Risiken, Zurich 2014, p 203; Oefli in Have 2011, pages 362 and 376.

(2) Hettich, p 204.

(3) Beck, Der Umgang mit Emerging Risks aus Sicht des Haftpflichtversicherers, Zurich 2010; Oefli p 362.

(4) Liechti/Karlaganis in Have 2015, pages 14 and 23.

(5) Liechti/Karlaganis in Have 2015, pages 14 and 24.

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