Today the online information site nanowerk posted a commentary from Skip Lockard, a toxic-tort lawyer based in Atlanta, warning manufacturers and retailers of products containing nanomaterials to take effective and immediate action to protect workers and consumers, because:

'Failure to warn' claims have proven fertile grounds in past personal injury cases and consumer product class actions . . . businesses should think, on a case-by-case basis, about opportunities to mitigate future claims through appropriate disclosures.

NRDC recommends that manufacturers and retailers require that their supply chain identify where materials or ingredients are nanoscale, and provide all available safety data on those materials, including data for a human health hazard assessment, a physicochemical hazard assessment, and an assessment as to whether the material may be persistent, bioaccumulative, and toxic. This is generally consistent with the European REACH requirements for chemicals manufactured or imported at over 10 tonnes/year. NRDC will advocate for these data for all nanomaterials, regardless of volume.

Nanomaterials or nanotechnologies are finding applications in over 800 consumer products, according to self-disclosures by industry in their consumer advertising. At this time, EPA is primarily relying on a voluntary reporting program launched in early 2008, called the Nanoscale Materials Stewardship Program (NMSP) to provide oversight of nanomaterials. Companies that sign up are agreeing to submit basic data on the physical and chemical properties of their materials, and any toxicity data they have on hand, but are under no obligation to generate new data. An excellent analysis by Dr. Denison of EDF points out that the NMSP, already weak by its voluntary nature, failed to incorporate recommendations from its advisory committee that in November, 2005 advised EPA to include a deadline by which companies should sign up to participate, definite program requirements and timelines by which the success or failure of industry submissions could be measured.

Where the supply chain will not or cannot supply the above data, manufacturers and retails should be skeptical of using the nanoscale materials. This can be done in advance of regulatory requirements for such data. As Skip Lockard says, "voluntary adherence to guidance documents and industry standards now may demonstrate the kind of good faith efforts necessary to defeat punitive damages claims in future litigation."