pageok
pageok
pageok
Regulating Nanosilver:

The Environmental Protection Agency is preparing to regulate nanotechnology under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) for the first time. Specifically, the Washington Post reports, the EPA will adopt new regulations on the use nanoparticles of silver as germ-killing agents.

The decision -- which will affect the marketing of high-tech odor-destroying shoe liners, food-storage containers, air fresheners, washing machines and a wide range of other products that contain tiny bacteria-killing particles of silver -- marks a significant reversal in federal policy. It also creates an unexpected regulatory hurdle for the burgeoning field of nanotechnology, which involves the creation of materials just a few ten-thousandths the diameter of a human hair.

Given the nature of FIFRA, the EPA will only regulate products containing "nanosilver" if the manufacturer makes germ-killing claims.

Under the new determination, first reported on Tuesday by the Daily Environment Report, a Washington publication, and confirmed yesterday by the EPA, any company wishing to sell a product that it claims will kill germs by the release of nanotech silver or related technology will first have to provide scientific evidence that the product does not pose an environmental risk. . . .

[The EPA's] Jones said the final rules will be spelled out in the Federal Register sometime in the next few months. He acknowledged, however, that the EPA oversight will apply only to products advertised as germ-killing -- a detail that at least one major retailer has apparently noted.

The Sharper Image, which until recently advertised as anti-microbial several products containing nanosilver, has dropped all such references from its marketing materials.

In such cases, Jones said, the EPA will not act. "Unless you're making a claim to kill a pest, you're not a pesticide," he said.

K Bennight (mail):
The EPA seems to think it is the FDA or the FTC. What difference does it make to the EPA what claims are made? Either the silver nanoparticles present a risk that needs to be regulated or they don't. To regulate them only if certain claims are made seems to be a concession there is no inherent risk and, therefore, a concession that they are outside what the EPA ought to be regulating.

What am I missing?
11.23.2006 11:14am
Mary Katherine Day-Petrano (mail):
I can't wait until the EPA, FCC, and FDA decide to regulate nanotech "pixie dust."
11.23.2006 2:24pm
Christopher M (mail):
K Bennight:

The federal law that Prof. Adler mentions, the Federal Insecticide, Fungicide, and Rodenticide Act, gives the EPA authority to regulate "pesticides," which the statute defines to include substances intended to kill microorganisms. It isn't regulating non-pesticides because the statute doesn't authorize that. (Though obviously other statutes allow the EPA to regulate other things; I don't know what boundaries such other statutes set on its jurisdiction.)
11.23.2006 3:38pm
K Bennight (mail):

"the Federal Insecticide, Fungicide, and Rodenticide Act, gives the EPA authority to regulate "pesticides," which the statute defines to include substances intended to kill microorganisms."


I confess ignorance of the cited act. If its jurisdictional grant is limited to things intended to kill microorganisms as opposed to things that, as formulated, will do so, then so be it. But that seems odd to me. Again, should not the underlying issue be whether the product presents some sort of risk, not whether the manufacturer intends it to be used in a certain way?

If I market the product to be used in shoe liners, food-storage containers, etc., because I claim doing so will appease angry spirits, I'll be OK?

I confess I am skeptical of much federal regulation, but if there's really a risk here, I'd like to be better protected from it. And if not, well . . . .

I gather the answer may be that the jurisdictional grant in the statute is poorly conceived.
11.23.2006 8:27pm
Cornellian (mail):
I confess ignorance of the cited act. If its jurisdictional grant is limited to things intended to kill microorganisms as opposed to things that, as formulated, will do so, then so be it. But that seems odd to me. Again, should not the underlying issue be whether the product presents some sort of risk, not whether the manufacturer intends it to be used in a certain way?

Presumably they wanted to just carve out the situation of deceptive marketing of products and leave the regulation of risk in general to the states. I don't think they want to regulate boiling water as a pesticide just because it happens to have germ killing properties, even though it's not marketed as such.
11.23.2006 9:16pm
Christopher M (mail):
If its jurisdictional grant is limited to things intended to kill microorganisms as opposed to things that, as formulated, will do so, then so be it.

I'm not remotely an expert on the Act, but that's more or less how it looks to me:
The term ``pesticide'' means (1) any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, (2) any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant, and (3) any nitrogen stabilizer...
11.24.2006 1:25am
Fub:
Diatomaceous earth has been used and marketed as a pesticide for a long time. In recent years it's been marketed as an "organic" pesticide, which it arguably is. I expect its particle size is in the range commonly considered "nano particles".

It kills certain insects by physical means, not chemically.

Has EPA ever regulated it?
11.24.2006 3:51am
J. F. Thomas (mail):
Has EPA ever regulated it?

I don't know about diatomaceous earth, because I have never seen it marketed specifically as a pesticide. But for a similar product--boric acid, which is marketed both as a pesticide and a drug. When it is marketed specifically as a pesticide, mainly to kill roaches, it is regulated by the EPA as a pesticide. Yet if buy boric acid that is packaged to soak your feet, it is regulated as drug by the FDA and none of the pesticide warnings are on the container (just as none of the FDA warnings appear on the "pesticide" boric acid containers). Boric acid also was once marketed as a laxative, but apparently that use is no longer FDA approved.
11.24.2006 11:02am
Bruce Hayden (mail) (www):
FIFRA was one of those pieces of trivia I had to learn in law school and promptly forgot. Luckily, we only spent maybe fifteen minutes on it, in an otherwise enjoyable environmental law class. Luckily, the prof felt the same about it as the rest of us did, as it didn't end up on the final.
11.24.2006 11:54am
Albert Gawlak (mail) (www):
Although not an expert we have had much discussion on the Act as it relates to GA State Pesticide Application laws and Organic Agriculture and Federal initiatives for greater use of botanical agents that may or may not have an EPA registration.

First, if a product makes a claim to kill then it must be EPA registered. If the claim is proved true and it meets the safety standards then it is exempt or registered. If it is false it is rejected.

The registration of the product is regulated and expensive to admin.

AND, to use the registered product and collect a fee you must be licensed for this and pass the applicable exams and maintain supervision and license status. And have insurance to this effect.

So, a bandaid applicator using the product must have a pesticide applicators license (common in landscaping but not in doctor's or school offices).

And, if you sell a pesticide you must have a restricted dealer license as well.

Consequently, if you manufacturer a product making a claim as a killing agent, you sell it or you apply it you will be held liable for issues arising from MISUSE &MISAPPLICATION OF THE PRODUCT.

Although this is not neccessary in Europe because good better best marketing claims are not allowed. In the USA manufacturers can make any claim...we allow it and so the average consumer needs protection from them.
11.26.2006 1:11pm
Brian Macker (mail) (www):
"The term ``pesticide'' means (1) any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest"


Since their regulating nano-particles that kill microorganisms on this basis how long till they regulate macroparticles that kill macroorganisms. How soon will they be require studies on the release of mousetraps into the environment? :)
11.27.2006 11:24am