Beyond Chemicals: The Lessons that Toxic Substance Regulatory Reform Can Learn from Nanotechnology

Scott Bomkamp

Nanotechnology is a revolution in applied science. By manipulating molecules on the scale of billionths-of-a-meter, scientists have created materials that exhibit “almost magical feats of conductivity, reactivity, and optical sensitivity, among others.” Nanotechnology also has the potential to drive an economic revolution. Retailers already sell over 300 products that incorporate nanotechnology, and according to one estimate, nanotechnology will be a trillion-dollar-a-year industry by 2015. In congressional testimony, Ray Kurzweil, Chairman and Chief Executive Officer of Kurzweil Techonologies, asserted that nanotechnology would result in the pervasive miniaturization of all human industry by the middle of the twenty-first century.

The tremendous economic benefit of nanotechnology, however, will come at a price. Nanotechnology applications present novel, serious, and possibly irreversible threats to human health and the environment. Recently, the field of nanotoxicology has been developed to characterize and quantify these threats. Part I of this Article describes the emerging field of nanotechnology and its applications.

Because of nanotechnology’s mixed blessing, the United States government must select a strategy to maximize nanotechnology’s economic potential while containing its health and environmental dangers. Part III of this Article argues that the best strategy is to incorporate nanotechnology regulation into a general-purpose toxic substances statute, such as by amending the Toxic Substances Control Act (TSCA), which is intended to regulate all chemical substances at the point of manufacture. Part II of this Article discusses the early research demonstrating health and environmental dangers associated with nanotechnology.

Part IV of this Article provides background on toxic substances law, and Part V proposes changes to United States toxic substances law to address nanotechnology’s threat. Two laws figure heavily into this discussion: TSCA and the European Union directive, known as Registration, Evaluation, and Authorisation of Chemicals (REACH).7 REACH is modeled to a large degree on TSCA, but addresses many of TSCA’s perceived shortcomings. Congress is considering revising TSCA based on REACH, which would essentially create a third-generation toxic substances statute.

Full article (.pdf) available here.