An article by Reed D. Rubinstein of Greenberg Traurig LLP, in the new issue of Nanotechnology Law & Business (Fall 2009), discusses a “petition” filed with the United States Environmental Protection Agency (EPA) by the International Center for Technology Assessment (ICTA) and other special interest groups. The Petition claims that “research has mounted to indicate that nano-silver materials pose serious risks to human health and the environment.” As a result, the Petition demands (among other things) that the EPA regulate all nano-silver products as pesticides, and stop the use or sale of all consumer products using nano-silver under the authority of FIFRA, the Federal Insecticide, Fungicide and Rodenticide Act.
The EPA published notice of the ICTA Petition in the Federal Register for public comment (see 73 Fed. Reg. 69644 and 74 Fed. Reg. 2072) and received over 1,000 comments before the comment period closed. EPA is currently reviewing the comments and formulating its response to the ICTA Petition.
Why is the Attack on Nano-Silver Significant?
Rubinstein accurately assesses the ICTA Petition as having fired a significant “initial shot over the bow” of the nanotechnology industry. Silver nanoparticles are already used in more consumer products than any other nano-material, primarily because nano-silver is a highly effective bactericide and anti-microbial. For example, nano-silver is already in use in home appliances, infant cups and utensils, food packaging, water filters, socks, bedding materials, undergarments, and other products.
Rubinstein points out that the ICTA attack on nano-silver seems scientifically misplaced inasmuch as the data uniformly suggest that it is non-toxic and non-carcinogenic in humans. However, it must be conceded that there have been some recent studies finding potential environmental toxicity/significance as well as toxicity to some fish and acquatic non-vertebrates. In theory, expanding use of nano-silver in consumer products could cause silver wastewater discharges to increase, leading to the potential for problematic impacts as yet unknown.
Who is the ICTA and Why Should You Care?
The ICTA IRS Form 990 tax return and its website states that the organization’s purposes include, “Halt the commercialization of nanotechnology until products containing nanoparticles have been proven safe." The funding of ICTA is unclear but it seems apparent, from a fair reading of its publicly-available materials concerning nanotechnology and the contents of its Petition to the EPA, that ICTA is not so much interested in science as it is in waging a raw propaganda war, using politically charged language and making claims that are empirically unsupportable. The intended effect is to negatively impact the perception of nanotechnologies held by politicians, regulators, and the public, and not to earnestly discuss the science of nanoparticles.
What is at Stake?
Rubinstein, rightly in my view, concludes that “[t]he ICTA Petition is but the first step in what will likely be a long and bitter war,” and he urges the nanotechnology industry to learn from the mistakes of other industries, to take effective steps to preserve consumer faith and confidence, and not to shrink from engaging in the coming war worth fighting.
That war will include battles in a number of theatres. As I have suggested in a number of articles – including The Dawn of the Age of Nanotorts, available by clicking on “Articles and Presentations” on the Home Page for this site – one significant theatre of the war will be the courtrooms of America through the tort litigation process.