As federal legislation calls for intensified research into nanotechnology’s potential health risks and federal agencies continue developing strategies for studying nanotechnology’s health and environmental impacts, government interest in nanotechnology’s potential risks clearly continues to rise. Yet despite this growing federal concern, activist groups claim that the government is moving too slowly to regulate what they describe as “the next asbestos.”

Federal Legislative Developments and Research Plans

On June 5, 2008, the U.S. House of Representatives approved the National Nanotechnology Initiative Amendments Act of 2008 (H.R. 5940) by an overwhelming 407 to 6 margin. On July 16, 2008, John Kerry and others introduced the same act in the United States Senate. If enacted, the legislation will reauthorize and expand the multi-agency federal nanotechnology research and development program originally authorized in 2003. Importantly, the Act will increase federal research in several key areas of interest to toxic tort practitioners, including nanotechnology’s environmental, health and safety implications.

Legislative efforts to expand nanotechnology health research via the act continue a trend of increasing federal interest in nanotechnology risks. The Agency for Toxic Substances and Disease Registry (ATSDR), for example, is considering the development of a full toxicological profile for “nanomaterials.” Although the specific “nanomaterials” that ATSDR might include in a toxicological profile remains unclear, plaintiffs’ attorneys could rely on the results for years to come.

Similarly, the National Institute for Occupational Safety and Health (NIOSH) is implementing a strategic plan for investigating potential nanotechnology health risks. NIOSH’s latest iteration of the plan features an aggressive research agenda, including multi-year investigations of (1) nanomaterial dispersion in the workplace; (2) possible worker exposure routes; (3) nanoparticles toxicities and particular health effects within the human body, including carcinogenicity assessments; (4) development of toxicity models for use in human risk assessments and (5) the feasibility of industry-wide epidemiologic studies of employees exposed to nanomaterials. Like ATSDR’s anticipated “nanomaterial” toxicological profile, the information and data generated by NIOSH research activities over the next few years will likely be of substantial interest to toxic tort and environmental law attorneys.

Activist Groups Rally Support for Immediate Regulation of Nanomaterials

Amidst these intensifying efforts to study and research the effects of nanotechnology on human health and the environment, the International Center for Technology Assessment (ICTA) has threatened to “take all legal and regulatory actions necessary to force our federal agencies to prevent this potential asbestos-like nightmare.”1 In early May 2008, ICTA filed a petition demanding that the Environmental Protection Agency (EPA) use its pesticide regulation authority under the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) to stop the sale of over 200 consumer products containing nanoparticle silver (nano-silver), including household appliances and cleaners, clothing, children’s toys and personal care products.2

In May 2006, ICTA filed a similar petition demanding that the Food and Drug Administration (FDA) issue a formal opinion on nanoparticle safety, amend current FDA regulations to encompass nanotechnology and enact comprehensive nano-product regulations.3 The 2006 petition also demanded an FDA recall of all sunscreens containing nanomaterials until premarket testing demonstrates that they are safe for human use. Such a recall would require FDA to retreat (at least temporarily) from its presumption that sunscreens containing nanomaterials are as safe for human use as other kinds of sunscreens.

Both EPA and FDA are members of the National Nanotechnology Initiative, the federal research and development program established to coordinate the multi-agency efforts in nanoscale science, engineering and technology, which will likely be reauthorized by the National Nanotechnology Initiative Amendments Act of 2008.

The escalating federal focus on nanomaterials’ health and environmental effects shows that questions about the safe development and use of nanomaterials are unlikely to wane in the near future. To the contrary, calls for extensive research, activist petitions for federal regulation and media discussion of nanotechnology’s potential risks are sure to follow. Companies manufacturing or using nanomaterials will be well-served by staying on top of emerging nanotechnology research and public perception issues. By doing so, in consultation with experienced counsel, businesses may be able to soften the sting of—or avoid altogether— future complaints by pioneering plaintiffs’ attorneys looking for the “next” asbestos.