The Law of the European Union on Nanotechnologies: Comments on a Paradox

• Date: 01 July 2013
• Author: Estelle Brosset
• Published date: 01 July 2013
• DOI: http://doi.org/10.1111/reel.12030

The Law of the European Union on

Nanotechnologies: Comments on a Paradox

Estelle Brosset

European Union (EU) law and policy on nanotech-

nologies reveals what might seem like a paradox. Even

if the EU acts as a leading investor in this area, there is

no regulation specifically targeting nanotechnologies.

While a great number of European regulations could

be applicable to nanomaterials, these still require

further examination. However, the adaptation of

current provisions has not been successful so far due to

terminological inconsistencies, which have not been

completely resolved by the adoption of the recommen-

dation of the European Commission on a definition for

nanomaterials.

INTRODUCTION

‘There’s plenty of room at the bottom.’1This was how

Richard Feynman, an American physicist, advocated

for scientific research on infinitely small structures at a

conference in 1959. Scientific progress has since then

led to the birth of nanotechnologies. This new type of

technology refers to a set of scientific and technological

activities, conducted at an atomic and molecular level,

to develop2materials and processes endowed with new

functions and features. ‘Nanotechnologies’ not only

refer to the study of infinitely small structures, but also

extend to practical applications of the knowledge gen-

erated to build3new products,4such as nanomaterials

that constitute the basic components of manufactured

products.5The qualities of different nanomaterials

(e.g., optical, catalytic, mechanical, magnetic, thermal)

can undergo changes, with some properties appearing

and others disappearing.

Not surprisingly, these scientific and technological

developments have given rise to a remarkable level of

industrial development. This development has been

accompanied by a growing concern about the potential

risks associated with nanotechnologies, given that some

technologies are already marketed6and physical and

chemical features of these products are likely to gener-

ate significant ethical risks as well as new health and

environmental concerns. For instance, nanomaterials

could penetrate into the lungs or into the vascular

system and thereby affect the whole body. They could

thus hypothetically lead to long-term genetic damage.

Nanomaterials may also be released into the air, water

or soil, and affect our physical environment. Although

current techniques enable the measurement of the

exposure to nanoparticles for specific workers in a con-

fined area, knowledge about exposure to air particles

remains limited. Moreover, measuring exposure

through food products is still difficult, and requires

a case-by-case approach.7One thing becomes clear

1R. Feynman, ‘There’s Plenty of Room at the Bottom’, Lecture deliv-

ered at the Annual Meeting of the American Physical Society, Cali-

fornia Institute of Technology (29 December 1959), found at: <http://

www.zyvex.com/nanotech/feynman.html>.

2Nanotechnological activities can broadly be divided into two

approaches. The ‘top-down’ approach has been pioneered by the

microelectronic industry. It consists of diminishing the size of an

object to nanometric proportions. This technique is currently the most

often used one to produce microprocessors or nanomaterials. The

‘bottom-up’ approach is applied in research laboratories and in the

nanosciences, and involves assembling molecules in a controlled

way into new objects, structures and engines.

3Nanomaterials also exist in nature, for instance, in volcanic ashes,

clouds and clay, smoke of forest fires and marine salt resulting from

evaporation of sprayed marine water.

4Three main areas can be distinguished: nanoelectronics, nanobio-

technology and nanomaterials. The latter refers to the precise control

of nanometric dimensions, morphology of substances or particles to

build nanostructured materials. See: <http://www.economie.gouv.fr/

cedef/dossier-documentaire-nanotechnologies>.

5J.-P. Dupuy and F. Roure, Les Nanotechnologies: Éthique et Pro-

spective Industrielle (Conseil Général des Mines, 2004), at 12.

6These include nanoproducts used for medical purposes (bandages,

heart valves, etc.), as well as domestic purposes (electronics com-

ponents, sports clothing and socks, toys, cooking utensils, packaging

materials, fridges, etc.).

7The Scientific Committee on Emerging and Newly Identified Health

Risks (SCENIHR) states: ‘Health and environmental hazards have

been demonstrated for a variety of manufactured nanomaterials. The

identified hazards indicate potential toxic effects of nanomaterials for

man and the environment. However, not all nanomaterials have toxic

effects. Some manufactured nanomaterials have already been in use

for a long time (e.g. carbon black, TiO2), showing low toxicity. There-

fore, the hypothesis that smaller means more reactive, and thus more

toxic, cannot be substantiated by the published data. In this respect,

nanomaterials are similar to normal chemicals/substances in that

some may be toxic and some may not. As there is no a generally

applicable paradigm for nanomaterial hazard identification yet, a

case-by-case approach for the risk assessment of nanomaterials is

still recommended.’ SCENIHR, Risk Assessment of Products of

Nanotechnologies (European Commission, 2009), found at: <http://

ec.europa.eu/health/ph_risk/committees/04_scenihr/docs/scenihr_o_

023.pdf>,at56.

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Review of European Community & International Environmental Law

RECIEL 22 (2) 2013. ISSN 0962-8797

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