Nanotechnology: The New Asbestos

May 2008

Nanotechnology has emerged as a breakthrough technology used in over 200 currently-marketed products. However, the widespread use of the technology, coupled with the lack of knowledge regarding its potential health risks, may create an extension of liability based on asbestos-like principles.

Nanotechnology allows engineers to manipulate matter on the nanometer (one billionth of a meter) level and it can take on a number of different forms. Nanotubes, or cylindrical fullerenes (“buckyballs”), are carbon molecule tubes that can be filled with a substance, sealed, and inserted into another organism where it then releases its payload. Dan E. Linstedt, Nanotechnology Basics Defined, beye.com, May 5, 2005. Consequently, advanced medical delivery systems can use nanotubes to attack a cancerous tumor from the inside or deliver nutrients to human skin cells damaged by time or the sun. Nanotechnology Developments in Cosmetics and Personal Care Highlighted at ACS Conference, azonano.com, Sept. 1, 2005. Nanocrystals are in a lattice or crystalline shape, making them extremely durable and strong. Dan E. Linstedt, Nanotechnology Basics Defined, beye.com, May 5, 2005. Automobile manufacturers are beginning to use the crystals to make the steel used in their products stronger and more resilient. Id. Some nanotechnology comes in the form of optical or particle waves that rely on super-conductivity and allow electrons to be exchanged through standing waves from one device to another, creating new wireless power sources. Id. While engineers initially developed nanotechnology to improve the capacity of silicon chips, the different forms of the technology has allowed it to rapidly expand into other industries.

Despite the widespread use of the technology, very little is known about its potential effect on humans. Due to their size, nanoparticles can be easily inhaled if airborne or may permeate the skin if applied topically. Charles E. Reynolds, II, Address at DRI Product Liability Conference: Nano-technology: Promise or Problem? (Feb. 8, 2007); Robin Fretwell Wilson, Nanotechnology: The Challenge of Regulating Known Unknowns, 34 J.L. Med. & Ethics 704, 709 (2006). Nanoparticles also show signs of persistence once inside the body, and scientists do not know how long the particles remain in the body before being expelled. Id. at 707, 710. Scientists also cannot determine the effect of nanoparticles on cellular or tissue function, but some evidence exists that nanoparticles may be able to pass through cell membranes and the blood-brain barrier. Id. at 707, 709. This lack of information has prompted warnings from health organizations in both the United States and Great Britain. Center for Disease Control, NIOSH Safety and Health Topic: Nanotechnology (last visited Feb. 22, 2007); Royal Academy of Engineering, Nanoscience and Nanotechnologies: Opportunities and Uncertainties 2 (2004).

In the face of uncertainty, consumer groups and the plaintiffs’ bar have begun to educate the public on the potential harm from exposure to nanoparticles. Some have labeled nanotechnology as the next asbestos, while others have set up websites for consumers or workers to complain about injuries allegedly sustained from exposure to nanoparticles. John C. Monica, Jr. et al., Preparing for Future Health Litigation: The Application of Products Liability Law to Nanotechnology, 3 Nanotechnology L. & Bus. 54, 55 (2006) (quoting Dangers Come in Small Particles, Hazards Magazine (Aug. 2004)); Register your Magic Nano Complaint, (last visited Feb. 22, 2007). In May 2006, eight groups filed a petition with the FDA to address labeling of nanotech products. Citizen Petition to the United States Food and Drug Administration (last visited Feb. 22, 2007); Robin Fretwell Wilson, Nanotechnology: The Challenge of See Regulating Known Unknowns, 34 J.L. Med. & Ethics 704, 708 (2006).

Due to increasing public awareness, both workers in manufacturing plants and consumers of nanotech products may turn to the judicial system for compensation for injuries allegedly caused by exposure to nanoparticles. Workers may claim they were subjected to an unsafe working environment due to the exposure. John C. Monica, Jr. et al., Preparing for Future Health Litigation: The Application of Products Liability Law to Nanotechnology, 3 Nanotechnology L. & Bus. 54, 59 (2006). Potential consumer claims include unreasonably dangerous product claims because of exposure to released nanoparticles or lack of adequate warnings regarding potential health hazards posed by nanoparticles. Id. at 59-60.

Companies using nanotechnology can take preventative measures. One proactive strategy includes engaging in extensive risk assessment tests, such as dose/response and threshold tests. Thomas P. Redick, Risk Assessment and Product Liability Prevention in Nanotechnology, Products Liability: Design and Manufacturing Defects § 24:6 (2006); John C. Monica, Jr. et al., Preparing for Future Health Litigation: The Application of Products Liability Law to Nanotechnology, 3 Nanotechnology L. & Bus. 54, 55 (2006). These tests would enable companies to understand the interaction of the particles with the human body and the maximum exposure level that will produce no injurious results. With this knowledge, companies will be able to minimize lawsuits by assessing the risks inherent in the product and producing a safety plan that reduces the level of exposure for workers as well as consumers. Thomas P. Redick, Risk Assessment and Product Liability Prevention in Nanotechnology, Products Liability: Design and Manufacturing Defects § 24:6 (2006).

Companies can also combat skepticism by retaining extensive documentation of their tests, including internal scientific studies and any correspondence regarding the product. John C. Monica, Jr. et al., Preparing for Future Health Litigation: The Application of Products Liability Law to Nanotechnology, 3 Nanotechnology L. & Bus. 54, 63 (2006). Such documentation would not only provide adequate transparency to avoid punitive damages in lawsuits, but it may also decrease the company’s regulatory burden by decreasing the need for regulation of nanotech products in general. Id.; David Needle, Nano Spray Recall Raises Potential Health Risks, internetnews.com, Apr. 14, 2006 (quoting Dr. Andrew Maynard, the president of the Project on Emerging Nanotechnologies, as advocating more transparency in the process rather than further regulation). The costs expended, in the understanding and documentation of the risks involved, early in the process will save the company liability costs in the long run.

The extension of liability for exposure to nanoparticles will decrease as information regarding the health effects of such exposure increases. Early information means it will be less likely that manufacturers are exposed to asbestos-like lawsuits for exposure to nanoparticles. Thus, extensive early research will be critical in stopping nanotechnology from becoming the next asbestos.

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