The study of nanotechnology has fueled debate over whether it involves potentially toxic substances that may cause activity in the mass tort arena.  Nanotechnology refers to research and technological development at the atomic, molecular, and macromolecular levels, aimed at creating and using structures, devices, and systems that have novel properties and functions because of their small size.  A nanometer is one billionth of a meter; a human hair is roughly 100,000 nanometers wide.  At these sizes, nanomaterials exhibit unique chemical and physical properties that they would otherwise not exhibit in larger forms.

In 2007, the global market for goods incorporating nanotechnology totaled $147 billion, and this figure is estimated to grow to $3.1 trillion by 2015.  Current applications of nanotechnology include, but are not limited to, wrinkle free textiles and sunscreens that can be applied without typical white residue.  The cosmetics industry is also beginning to incorporate nanomaterials into some of its products, most notably skin and anti-aging creams.  A multitude of other applications, such as green energy and drug delivery systems, are currently under research.

Several recent studies have demonstrated the potential toxicity of nanomaterials, some making comparisons to the toxic effects of asbestos fibers.  Some studies have demonstrated the potential adverse health consequences of another type of nanomaterial called carbon nanotubes (“CNTs”).  In one study, rats were injected with CNTs, which then led to the development of mesothelioma in some rats, a rare illness typically associated with asbestos exposure.  However, this study was criticized since human lungs would be exposed to CNTs through inhalation rather than injection.  Although scientists question the accuracy or usefulness of drawing parallels between CNTs and asbestos fibers, most agree that further research is needed to determine the scope and extent of the potential health hazards of CNTs in an effort to create effective protective measures for workers, consumers, and the general population.

Health organizations, the state of California, and the EPA have taken action in an effort to investigate the potential environmental and health-related impacts of this emerging field.  California recently signed into law Assembly Bill 289, which allows the California Department of Toxic Substances Control (“DTSC”) to request information regarding analytical test methods, fate and transport in the environment, and other relevant information from manufacturers of certain chemicals of concern, including nanomaterials.  Under the law, “manufacturers” include persons and businesses that produce chemicals in California or import chemicals into California for sale.  The purpose of these requests is to identify information gaps and develop further knowledge about the chemicals.  On January 22, 2009, the DTSC sent a formal request to manufacturers who produce or import CNTs in California.

The Environmental Protection Agency has taken similar measures under the Toxic Substances Control Act (“TSCA”), which requires manufacturers of “new chemicals” to submit pre-manufacture notices to the Agency.  If the EPA finds that the new chemical in question poses an "unreasonable risk to human health or the environment", the Agency may regulate the substance in a variety of ways, from limiting uses, limiting production volume, or banning it altogether.  Most recently, the EPA issued “significant new use rules” (“SNURs”) for two nanomaterials—siloxane modified silica nanoparticles and siloxane modified alumina nanoparticles—which were subject to a pre-manufacture notice under the TSCA.  The EPA determined these two nanomaterials may cause health problems through inhalation and dermal exposure.  The SNURs require anyone who manufactures, processes, or imports the materials without the use of impervious gloves or a NIOSH-approved respirator to notify the Agency at least 90 days before doing so.  The Agency will then evaluate the use, and if necessary, limit or prohibit the activity.

Despite the recent environmental and toxicological studies and governmental attempt to implement some degree of regulation, there has been little to no activity in the realm of tort litigation regarding nanomaterials.  This is likely due to the current lack of scientific confirmation as to whether or not nanomaterials pose environmental, health, and safety risks.  Currently, manufacturers incorporating nanotechnology into their products do not make such disclosures on product labels.  To be sure, the law has not yet determined whether or not such disclosures are required, but as billions of dollars continue to be spent on incorporating nanotechnology into consumer products, plaintiffs’ attorneys and watchdog groups will certainly be tracking the results of continuing research to determine whether various nanomaterials have toxic properties that may support claims for damages.

Dee Cohen Katz
Walsworth, Franklin, Bevins & McCall
dkatz@wfbm.com

Vandad Khosravirad
Walsworth, Franklin, Bevins & McCall
vkhosravirad@wfbm.com

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Categories: Technology | Toxic Tort

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