Understanding the potential for new risks, and particularly those that may ultimately lead to disease claims, is increasingly important for those sectors manufacturing or using nanotech. With its increased use in a variety of products, questions about the health risks will continue to be raised.

As early as 2008, pathogenic similarities between some carbon nanotubes (CNTs) and asbestos fibres were found. Most recently, nanotech has been linked with increases in certain illnesses, particularly for those involved in their manufacture.

Nanotechnology involves the development of materials containing microscopic fibres that are now used in many areas – indeed, their use in a consumer context is on the increase. Nano-influenced consumer products increased from just above 50 in 2005 to more than 1,600 five years ago; they are now being used within food production, both processing and packaging, and in a diverse range of other products, from sports equipment and aircrafts, to sports cars and computer motherboards.

There is no complete body of evidence on the dangers of nanotechnology, and the UK’s Health and Safety Executive (HSE) has said “there is insufficient data” for a full assessment. Existing scientific studies are inconsistent often producing new findings on the manufacturing risks.

Information on the production processes is limited and often subject to patent. However, it is known that CNTs are capable of being inhaled during manufacturing processes. Research in 2010 from the University of Edinburgh stated that there would be minimal risk to consumers in handling items made of carbon nanotubes as the fibres are firmly embedded in the final products. It is when these materials are in their raw state that they are likely to be at their most dangerous.

Some high-profile studies on the effects of CNTs on laboratory animals may give an indication as to their effects. Current Biology cited research in November 2017 suggesting CNTs may have the same carcinogenic effect as asbestos and could potentially induce the development of mesothelioma. The study stressed the specific danger that CNTs are not broken down inside the body and in that sense are “very similar to asbestos in their structural and physical characteristics”.

The European Commission’s Joint Research Centre contributed to a February 2017 study on the impact of CNTs on mice, focusing on the emission of CNTs in “products under conditions similar to those that actually occur in use”. The study found no increase in pulmonary inflammation when comparing exposure to CNT and non-CNT dust.

This was contradicted by an animal study from Japan, also published in 2017, which concluded that “CNTs induced sustained inflammation, fibrosis [and] finally, increase in tumor rate”. However, the study did caveat the findings by stating: “As the carcinogenicity of CNTs is based on animal studies only, their carcinogenicity for humans must also be examined.”

Insurers are currently taking a ‘wait-and-see’ approach on the risk posed by CNTs. Exclusions for nanotechnology in commercial policies remain uncommon. However, reliance on existing exclusions on the grounds that nanomaterials are ‘pollutants’ is unlikely to be successful and these would not exclude risks caused by inadequate protection of employees.

In the absence of conclusive medical evidence of illness caused by CNTs, insurers might argue exposure alone is not an ‘injury’ or ‘occurrence’ that results in insurance cover responding. However, the recent case of Dryden v Johnson Matthey established that should an employer’s negligence result in a physiological change to an employee, then the employee may be entitled to claim compensation for any financial losses resulting, even if the physiological change is asymptomatic. However, questions remain about the level of damages in the absence of a test case.

A 2013 study in the US found that considerable years of exposure to CNTs would be necessary for illnesses such as bronchial wall thickening and therefore, not surprisingly, there is no reported case law globally due to latency periods for injury onset. However, as time progresses and scientific research develops, there may be future litigation.

Specific regulatory guidelines or regimes do not exist within the UK or the EU for CNTs or nanomaterials, with manufacture and use covered by existing regulatory regimes. In the UK, the current operative HSE guidance reiterates that the use and manufacture of nanomaterials is regulated by the Control of Substances Hazardous to Health Regulations 2002, requiring employers to risk assess and take preventative measures.

In the EU, nanomaterials are regulated by the REACH Regime (for chemical substances) and while a 2012 review reaffirmed the REACH regime as the best framework for handling these materials, a consultation in October 2017 suggested further clarification was needed. Indeed, an advisory group for the International Agency for Research on Cancer is to evaluate the technology’s carcinogenicity between 2020 and 2024, which is likely to prompt further regulatory developments.

In light of further research, additional workplace limits may be placed on production of carbon nanotubes in future. In the event that such guidance is issued, corporates and risk managers will be expected to reassess their exposure to such risk.

The claimant lobby is always looking for new targets to pursue. Insurers are increasingly focused on exposure to emerging risks and scientific understanding of these new materials and their risk to humans continues to develop.

However, the prospect of nanomaterials becoming the ‘new asbestos’ is currently slim. Risk assessment is increasingly advanced and we would expect preventative measures to be established in a timely manner. By comparison, the cohort of claimants in asbestos claims was unparalleled. The lack of risk awareness and the widespread use of asbestos was the perfect storm; and the lessons learnt should reach far into the future, both in terms of health and safety, and in awareness of the need to assess and manage new and future risks.