Nanotechnology litigation is not an “if,” but a “when”—so go the prognostications. And for good reason: scant research by manufacturers, public uncertainty and fear, diverse and multiplying product use, and the “deep pockets” of the industry—all signs point to nanotech litigation in our near future. However, the basis of these lawsuits, whether product liability, consumer protection, or environmental, remains to be seen.
The definition of nanotechnology is not entirely agreed upon. The U.S. National Nanotechnology Initiative defines nanotechnology as “the understanding and control of matter at dimensions between approximately 1 and 100 nanometers….involv[ing] imaging, measuring, modeling, and manipulating matter at this length scale.” Other definitions tend to be a bit more simple: “nanotechnology is technology dealing with applications and products with engineered structures smaller than 100 nanometers.” As a frame of reference, a nanometer is 1/800th the width of a human hair.
The nanotechnology field, while only approximately 10 years old, is a rapidly developing and expanding field—cars, airplanes, sunscreens, glasses, medicines, detergents, clothing, cosmetics, fertilizers, etc. The use of nanostructured materials is seemingly endless. Experts on emerging technologies predict over $1 trillion in sales of products using nanotechnology by 2014. Further, it is estimated that by 2014, almost 15% of all manufactured products may rely on nanotechnology.
However, the properties and behavior of nanotechnology cannot be predicted and thus are not fully understood. Additionally, the very small size of nanotechnology poses a unique potential for exposure whether inhaled through the lung or absorbed through the skin. Once within the body, nanotechnology may circulate through the bloodstream, affecting any part of the body. Thus, while it is an exciting time for researchers, manufacturers, and even consumers, this excitement does not come without trepidation. Few research studies have been conducted as to the potential adverse health or environmental effects of nanotechnology, thus it is uncertain if, when, or what these effects may be. This is especially of concern for the many companies who have already brought nanostructured materials and products to market. Their potential exposure to liability is immense, considering the public is already interacting daily with products using nanotechnology.
Take for instance, carbon nanotubes. The use of carbon nanotubes is diverse and expanding daily: airplanes, semiconductors, fuel cells, electrical wiring, water desalination, sporting goods equipment, reinforced plastics, body armor, cancer therapy, to name just a very few. Despite the seemingly endless application of carbon nanotubes, there has been some negative “press” that carbon nanotubes not only physically resembles asbestos fibers, but may cause lung inflammation and granuloma development, potentially leading to mesothelioma. Two studies have suggested that carbon nanotubes may cause asbestos-like pathogenicity or mesothelioma. (Poland et al., Nature Nanotechnology, “Carbon Nanotubes introduced into the body cavity of mice show asbestos like pathogenicity in a pilot study.” 20 May 2008; Takagi et al., “Induction of mesothelioma in p53+/- mouse by intraperitoneal application of multi-wall carbon nanotube.” J Toxicol Sci 33:105-116, 2008). This is just one of the concerns of the adverse health effects of carbon nanotubes. Not only have consumer rights groups turned their purview to carbon nanotubes, the U.S. government has also. In 2010, the EPA began to enforce notice requirements when a company plans to manufacture or import products using carbon nanotubes.
Nanotechnology has the potential to offer immediate, wide-ranging benefits to our lives; whether those benefits outweigh their risks….only time will tell.
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