Nano and Other Emerging Chemical Technologies Law Blog: Lawyer & Attorney : Bergeson & Campbell Law Firm : Nanotech and Chemical Legal Developments

According to a report released on June 25, 2010, by the U.S. Government Accountability Office (GAO), the U.S. Environmental Protection Agency (EPA) faces challenges in effectively regulating nanomaterials that may be released in air, water, and waste because EPA lacks the technology to monitor and characterize these materials, or the statutes include volume-based regulatory thresholds that may be too high for effectively regulating the production and disposal of nanomaterials. In preparing its report, GAO identified examples of current and potential uses of nanomaterials; determined what is known about the potential human health and environmental risks from nanomaterials; assessed actions EPA has taken to better understand and regulate the risks posed by nanomaterials as well as its authorities to do so; and identified approaches that other selected national authorities and actions U.S. states have taken to address the potential risks associated with nanomaterials. GAO analyzed selected laws and regulations, reviewed information on EPA’s Nanoscale Materials Stewardship Program, and consulted with EPA officials and legal experts to obtain their perspectives on EPA’s authorities to regulate nanomaterials.

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On June 8, 2010, the Organization for Economic Cooperation and Development (OECD) announced the publication of two materials for use in the OECD Sponsorship Programme. The first is a revision of the Guidance Manual for the Testing of Manufactured Nanomaterials. According to OECD, the revised Guidance “is intended to support the testing undertaken in the context of OECD’S Sponsorship Programme and to ensure that the information collected from this testing programme be reliable, accurate, and consistent.” OECD states that the second document, entitled Preliminary Guidance Notes on Sample Preparation and Dosimetry for the Safety Testing of Manufactured Nanomaterials, was published to assist the sponsors of the OECD Sponsorship Program, as well as to help others involved in the safety testing of manufactured nanomaterials.

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The President’s Council of Advisors on Science and Technology (PCAST) seeks comment from stakeholders on how the federal government can best use its resources so three of the “newest and most promising technologies,” including nanotechnology, “provide the greatest economic benefits to society.” The President’s Innovation and Technology Advisory Committee (PITAC), which is part of PCAST, is soliciting information and ideas from stakeholders -- including the research community, the private sector, universities, national laboratories, state and local governments, foundations, and nonprofit organizations -- regarding the “Golden Triangle.” Each side of the Golden Triangle represents one of three areas of research that together are transforming the technology landscape today: information technology, biotechnology, and nanotechnology.

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On June 11, 2010, the European Chemicals Agency (ECHA) announced the availability of a technical manual for including nanoforms in an International Uniform Chemical Information Database (IUCLID) dossier. The Nanomaterials in IUCLID 5.2 Industry User Manual “gives practical instruction to [Registration, Evaluation, Authorization and Restriction of Chemicals (REACH)] registrants on how to include information on different forms of a substance in a IUCLID 5.2 dossier.” The Manual introduces a book-keeping principle, where each form gets a specific label that enables it to be tracked throughout the dossier. Instructions are given on how to create labels for form-specific reference substances, composition blocks, endpoint study records, and analytical data. In particular, the Manual “gives instructions that will enable registrants to consistently create and label Endpoint study records such that it is clear which composition or form was used as the test substance for that study.”

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On June 6, 2010, the European Commission (EC) Joint Research Center Institute for Health and Consumer Protection (JRC-IHCP) and the Chinese Academy of Inspection and Quarantine signed a Memorandum of Understanding (MOU) at the European Union (EU)-China Food Safety Scientific Seminar held at the Shanghai World Expo.  According to JRC-IHCP, “[b]oth institutions provide technical support for policy makers and aim to reinforce their co-operation in scientific research for consumer products safety.” The MOU is intended to support risk management, and, through new approaches in nanotechnology, to improve consumer protection.  JRC-IHCP cites the globalization of markets as one reason for this joint effort, saying “food safety or consumer protection are no longer domestic issues, but need to be addressed in an international collaboration.”

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On June 10, 2010, the Federal Institute for Risk Assessment (BfR) issued a press release entitled “Nanosilver has no place in food, textiles or cosmetics,” which states “BfR currently advises against using nanoscale silver ions in consumer products.” According to BfR, manufacturers of consumer products “have made use of the antimicrobial properties of silver ions for some time now,” and “silver particles in the nanorange have likewise been used.” BfR states: “It is not possible at the present time to determine in a definitive manner whether nanosilver constitutes a health risk for consumers,” and “we recommend that manufacturers refrain from using nanosilver in consumer products.” The press release states:

BfR feels there is a need for research to elucidate the fundamental issues in conjunction with the use of nanoscale silver as an antimicrobial material. On what scale do consumers come into contact with nanoscale particles? How big is the danger of resistance development?

BfR recommends refraining from using any nanoscale silver in consumer products until a definitive safety assessment becomes available. In any case nanoscale additives in food require approval. Nanosilver has not been approved for use in food. BfR welcomes this in the context of the yet to be answered questions about risk assessment.

BfR has published an Opinion on this subject.

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On May 28, 2010, the House passed, by a vote of 262-150, the America COMPETES Reauthorization Act of 2010 (H.R. 5116), which would authorize funding for the National Nanotechnology Initiative (NNI), as well as the National Science Foundation (NSF), National Institute of Standards and Technology (NIST), and Department of Energy (DOE) Office of Science activities. The bill includes language from H.R. 554, the NNI Amendments Act of 2009, which the House passed in February 2009. H.R. 5116 would require NNI to work toward developing “standards related to methods and procedures for detecting, measuring, monitoring, sampling, and testing engineered nanoscale materials for environmental, health, and safety impacts.” The bill would fund research on “green nanotechnology” by creating research centers that would focus on methods and approaches to develop environmentally benign nanoscale products and nanoscale manufacturing processes; foster the transfer of the results of such research to industry; and provide for the education of scientists and engineers through interdisciplinary studies in the principles and techniques for the design and development of environmentally benign nanoscale products and processes. The bill would create a position, within the Office of Science and Technology Policy (OSTP), for a Coordinator for Societal Dimensions of Nanotechnology. The Coordinator would ensure that a research plan for the environmental, health, and safety (EHS) research activities is developed, updated, and implemented.

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On June 3, 2010, the Food and Drug Administration (FDA) Center for Drug Evaluation and Research (CDER) Office of Pharmaceutical Science (OPS) posted on its website a Manual of Policies and Procedures (MAPP) entitled “Reporting Format for Nanotechnology-Related Information in CMC Review.” The purpose of the MAPP is to provide chemistry, manufacturing, and controls (CMC) reviewers within OPS with the framework by which relevant information about nanomaterial-containing drugs will now be captured in CMC reviews of current and future CDER drug application submissions.  According to the MAPP, this information “will be entered into a nanotechnology database under construction and ultimately be used to develop policy regarding these products.” Information to be collected includes whether the application contains nanomaterials; what type of nanomaterial is included in the product; whether the nanomaterial is a reformulation of a previously approved product; whether the nanomaterial is part of the drug substance or the drug product; whether the particle size was described in the application and what the reported particle size is; whether the techniques used to assess particle size are thoroughly described with respect to their adequacy; whether the nanomaterial is soluble or insoluble in an aqueous environment; and what other properties of the nanomaterial were measured and reported in the application, and how those properties were measured. The MAPP was effective June 3, 2010.

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On June 2, 2010, the European Parliament (EP) Committee on the Environment, Public Health, and Food Safety approved the proposed recast of the Directive on the Restrictions of Hazardous Substances (RoHS) in Electrical and Electronic Equipment, with 55 votes in favor, one against, and two abstentions. The Committee adopted amendments adding nanosilver and long multi-walled carbon nanotubes (MWCNT) to Annex IV, despite the fact that nanomaterials were not included in earlier proposals. In effect, there would be no threshold, with equipment prohibited from the market if it contained either nanosilver or long MWCNTs at “detectable levels.” The Committee also adopted amendments that require equipment containing nanomaterials to be labeled, and for manufacturers to be required to provide safety data on the nanomaterials to the European Commission (EC). The Committee voted in favor of an “open scope,” meaning that the RoHS Directive would apply to all electrical equipment, unless specifically excluded. The EP plenary vote on the amended proposal is scheduled for July 2010.

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In a May 25, 2010, letter to the U.S. Environmental Protection Agency (EPA) Office of Chemical Safety and Pollution Prevention (OCSPP), the Silver Nanotechnology Working Group (SNWG) expressed its concern regarding the pending Office of Pesticide Programs (OPP) interpretation concerning the regulation of nanoscale pesticide products. In its letter, SNWG states that the new interpretation, which “includes an unsupported and arbitrary definition of ‘nanomaterial’ and ignores decades of historical safety data,” would be “a major and damaging change in policy.” SNWG lists the following concerns:

• Institutionalize an arbitrary definition of nanotechnology;
• Contradict the statutory language and purpose of Section 6(a)(2) of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA);
• Improperly characterize nanosilver as a ‘new’ pesticide;
• Stifle innovation without any benefit to human health and/or the environment; and
• Promote a negative public perception regarding nanotechnology as a whole.

SNWG urges EPA to consider its concerns prior to releasing the pending policy.

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