Size Matters: Regulating Nanotechnology

Abstract

Nanotechnology - the design and application of structures and devices measuring one hundred nanometers or less - lies behind a growing number of innovative products and promises to revolutionize manufacturing processes. Nanomaterials are made from conventional chemical substances, but often behave very differently than the materials from which they are derived. The small size and relatively large surface area of nanoparticles enhance their mechanical, electrical, optical, or catalytic properties. Although nanomaterials are useful because of these special properties, they also may pose health and environmental risks that conventional substances do not. Early studies suggest that nanomaterials have unique abilities to penetrate the body's defenses or to persist in the environment, but much research remains to be done to identify and characterize specific risks.

Legal attention to nanotechnology has focused on intellectual property issues. Those commentators who have turned to health and environmental concerns generally believe that existing statutes can address potential risks. Departing from the prevailing view, this Article concludes that nanotechnology poses distinct and serious concerns warranting legislation specific to the manufacture and use of nanomaterials. The Article proposes notification and labeling requirements for all products containing nanomaterials. For products containing nanomaterials in a "free" form, which pose potentially greater health and environmental risks, the Article also proposes a screening process, post-marketing monitoring, and a requirement that nanotechnology companies post a bond to cover potential liabilities. The proposal creates an incentive to perform much-needed research, establishes funding to redress adverse effects, and sets the stage for further public consideration of nanotechnology's future.