This article appeared in Canadian Lawyer INHOUSE (August, 2009).

Nanotechnology

by Marc McAree

From ozone layer holes to mutating viruses to radon gas, we are all aware what you can’t see can definitely hurt you. Ultra-small nanoparticles could be the foundation of the next industrial revolution, ushering in a new Star Trek age of molecular manipulation. But if left unregulated and unchecked, these substances could prove to be our generation’s next environmental disaster.

With the impending promises and threats of nanotechnology, corporate and in-house counsel should stay up-to- date, participate in the latest legal and policy initiatives, and be aware of the expanding legal requirements associated with nanotechnology. Otherwise a business may find out it has illegally imported a nanomaterial or is facing product liability or environmental litigation.

Nanotechnology is the cutting edge of science. It is estimated more than 600 nanotechnology-based consumer products, made by 305 companies in 20 countries, are already on the market. By 2015, global nano-based commerce could be worth some $1.5 trillion. Nanoparticles range between one to 100 nanometers (a nanometer is one billionth of a metre) in diameter, thickness, or total size. They are found in a range of consumer products, including fabrics, eyeglasses, paints, electronics, tires, car wax, cosmetics, foods, and sporting equipment. They are being incorporated into solar batteries, fuel cells, selective membrane filters, and medical treatments. If you have put on sunscreen, odds are that you have put nanoparticles on your skin. In the future, nanotechnology could be used to create artificial tissues or devices programmed to seek and destroy arterial plaque or cancer cells.

Governments have been eager to throw research and start-up money at the technology. However, they have been much slower in addressing the potential human health and environmental threats nanoparticles may pose.

Nanoscale materials can have very different properties from their macroscale counterparts. They exhibit a greater surface area-to-mass ratio, which can result in unique thermal, magnetic, electrical, or chemical behaviour. Substances may also become toxic or biologically reactive as nanoparticles. These properties raise red flags about their potential health and environmental effects. Nanoparticles can be easily absorbed through the skin, lungs, or digestive track. They may translocate to distant tissues and organ systems and may bioaccumulate and be genotoxic or carcinogenic. Potential environmental risks are equally uncertain. A report by an expert panel assembled by the Council of Canadian Academies on the health and environmental risks posed by nanomaterials, concluded “too little is known” to assess the overall dangers. We aren’t sure how to measure exposures to nanomaterials. We don’t know how to accurately monitor and track their effects in the workplace or the ambient environment. We can’t even agree on how to define nanomaterials, the proper nomenclature, or the best way to classify and group them.

What’s next? That’s one more thing we don’t know, although Ottawa apparently intends to control nanoparticles under the Canadian Environmental Protection Act, 1999 (CEPA). In June 2007, Environment Canada released a new substances program advisory announcing nanomaterials will be regulated under CEPA’s new substances notification regulations (chemicals and polymers). Any nanomaterials not listed on the domestic substances list, or with “unique structures or molecular arrangements” compared to their non-nano counterparts, require a new substances notification package, including a risk assessment.

In September 2007, Environment Canada released a proposed regulatory framework for nanomaterials. The department has started implementing parts of the framework, primarily the pursuit of talks at the Organisation for Economic Co-operation and Development and the International Organization for Standardization, to achieve international collaboration on the definition and regulation of nanomaterials. As part of the framework, Environment Canada proposed conducting mandatory surveys under CEPA s. 71 on nanotechnology use in Canada. The survey will target firms and institutions that manufactured or imported more than one kilogram of nanomaterials in 2008. The information will be used to develop the national nanotechnology regulatory framework. To date, no request for information has been published in the Canada Gazette, and Environment Canada has not posted any details on its web site.

In the interim, businesses using nanotechnology must take appropriate steps to protect themselves. Corporate counsel should begin to consider possible future nano-related risks, including product liability, environmental costs and liabilities, and environmental due diligence when purchasing or transferring a business or commercial property.

Predicting the future is difficult. Perhaps nanotechnology will fail to dominate the commercial world. Other environmental and health problems may arise to monopolize your attention. But, if things do go wrong, no company wants to become the perpetrator of the next environmental disaster.

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