This is not a recent development, however, the US EPA’s filing of a brief in the relevant court case reminded me of the issue. In January last, the National Resources Defense Council – NRDC, announced its seeking to overturn the United States’ Environmental Protection Agency – EPA’s temporary approval of the use of nanosilver in fabrics.NRDC have been joined by others (see e.g. here for amicus curiae brief).
Starting in December 2011, EPA allowed the company HeiQ Materials to sell nanosilver used in fabrics for the next four years as the company completes studies on toxicity to human health and aquatic organisms.
I am not privy to the complete scientific file avalable to EPA and /or HeiQ Materials, however, the case has many familiar rings to it. Undoubtedly HeiQ have conducted their own test. Undoubtedly, too, they pointed EPA to existing studies on the dangers of exposure to nanosilver. However it is clear from reporting on the file that uncertainties remain, in particular with respect to the exposure of infants (who are inclined to chew on their clothes). The challenge is a classic application of the precautionary principle. Should the lack of full certainty lead to a ‘when in doubt opt out’ attitude, or should one adopt an incremental approach, making manufacturers subject to due process (ia in collecting data but also in protecting employees and consumers) and duty of care obligations whilst one awaits further data.
Never a joy for the parties concerned, however one could argue that it is only in litigating that we shall be able to set the boundaries along which regulatory authorities are to conduct themselves in addressing new technologies.