RFF's J. Clarence Davies explains the need for new nanotechnology law

The White House's most recent budget request included more funding to study health and environmental questions related to nanotechnology. But some experts say lawmakers in Congress need to go a step further and pass new legislation to regulate the emerging field. During today's OnPoint, J. Clarence Davies, senior research fellow at Resources for the Future and former assistant administrator for the U.S. EPA under President George H.W. Bush, explains why existing environmental laws aren't sufficient to cover nanotech. Davies, also a senior advisor to the Woodrow Wilson Center's Project on Emerging Nanotechnologies, details his recent testimony before a Senate panel and the growing use of nanotech in consumer products.


Brian Stempeck: Hello and welcome to OnPoint. I'm Brian Stempeck. Joining me today is Terry Davies. He's a senior fellow at Resources for the Future and a former assistant administrator for the U.S. EPA during the first President Bush, also a senior adviser to the Woodrow Wilson Center. Terry thanks a lot for being here today.

J. Clarence Davies: It's nice to be here Brian.

Brian Stempeck: Now, you testified at a Senate hearing last week talking about nanotechnology and some of the safety risks. What did you have to say to the committee?

J. Clarence Davies: My testimony was based largely on a report that I did for the Woodrow Wilson Center. And they had asked me to look at the regulatory system in the U.S. and see how well equipped that regulatory system was to deal with nanotechnology. The basic conclusion of the report was that the system is seriously flawed. In other words, in terms of regulating this new technology we need to do a lot more in terms of filling statutory gaps, providing more resources and also making adjustments for the new technology.

Brian Stempeck: In the report you talk about a lot of the laws that are already on the books, things like the Toxic Substance Control Act, the Clean Air Act, about a number of environmental laws. Why aren't those existing laws sufficient to govern nanotechnology?

J. Clarence Davies: Well, there's several reasons. First there's some very serious gaps. The Food, Drug and Cosmetic Act for example doesn't really regulate cosmetics at all. It's a toothless act entirely. And yet cosmetics are a major use of nanomaterials. There are nanomaterials in cosmetics on the market now. They're totally unregulated for all practical purposes. So the thing that worries me most is not so much the difficulties of using the existing statutes, as the statues that aren't there that should be there. Some of the statues that are on the books, like the Toxic Substance Act, has such serious flaws in them that one has to question whether they are adequate to deal with any technology, but certainly with nanotechnology. And then there are very serious resource problems. The Consumer Product Safety Commission for example has somewhere over 400 people to deal with all consumer products in the United States. And that's half the number of people they had in 1980.

Brian Stempeck: Now, you've said that if Congress does pass a new law on nanotechnology it should basically deal with a lot of the consumer products already on the market right now. Why is that? I mean can you talk about some of the products are on the market that need to have a new law applied to them?

J. Clarence Davies: You mean that use nanomaterials or nanotechnology?

Brian Stempeck: Yes.

J. Clarence Davies: It's used for, I mean there are about 60 or 70 consumer products on the market now that use nanomaterials. And then there's several hundred other kinds of things, catalysts, medical devices and so on that are not consumer products, but that use nanomaterials. The range of consumer products is pretty wide. As I say, a number of cosmetics, face creams, hairsprays, foot deodorants, those kinds of things have nanomaterials in them now. Some other uses are in clothing, wrinkle proof clothing uses nanomaterials now. And increasingly it's being used in food. Forbes magazine made a list of their 10 favorite nano products for 2005. And two of the items on their list of favorites were canola oil, which was good for dieting, and chocolate chewing gum, which you could never make before the wonders of nanomaterials came out.

Brian Stempeck: I mean do you think there is, are there health risks with these products? I mean has there been enough research done to determine whether these are problematic or not?

J. Clarence Davies: They're problematic. We don't know for sure whether there are any health risks or not, but the studies that have been done give serious cause for concern. These particles, the materials, are so small that they can travel through the body, they can penetrate the skin. They can do all kinds of things which normal sized materials can't. And we don't know frankly what the effects are. But it would be surprising if they were all entirely innocuous. The evidence is that there are reasons for concern.

Brian Stempeck: Then why aren't we seeing more action from some of the federal agencies? I mean you used to work at the U.S. EPA. Is it just a case of not having a federal agency really taking the lead on this quite yet?

J. Clarence Davies: It is partially that, but it's much more a question of being uncertain about what to look for and how to test for what the adverse effects would be. These materials behave differently from any other kind of materials. They behave differently biologically, chemically, physically, electrically, no matter, on every dimension they are just very unique kinds of things. Which is in part why they're so valuable, but it also makes it difficult to know what to look for and how to test them for adverse effects.

Brian Stempeck: You've also said that in the report you mentioned that it would be next to impossible to pass new regulations right now in the current political climate. Why do you think that is?

J. Clarence Davies: Well frankly I've had discussions on the Hill in the last few weeks they give me some encouragement that maybe it's not so impossible. But this administration does not like regulation. It's in effect never met a regulation that it liked. So that's what made me make that statement that it is very unlikely that either this Republican Congress or the administration would be inclined to pass legislation.

Brian Stempeck: Where do you see leadership coming from? I know you said you mentioned you talked to a few people on the Hill. There's been some interest, I know, in the House. You testified before the Senate committee. Are you seeing certain lawmakers who are saying that they are interested in doing new legislation on nanotech?

J. Clarence Davies: Saying they are interested?

Brian Stempeck: Yeah.

J. Clarence Davies: Yes, and it's all at a very preliminary state. So it's not clear whether, there's no sort of champion or leader in terms of dealing with the health and safety effects of nanotechnology. But my testimony yesterday was in front of Senator Stevens from Alaska and he clearly was concerned about the health and safety effects of nanomaterials. The Senate has a caucus on nanotechnology. Senator Wyden and Senator Allen and both of them are clearly, recognize the need to at least be cognizant of adverse effects.

Brian Stempeck: Now the other thing that Congress can do of course is boost some of the research funding. The White House request this year is about $1.3 billion for overall research across all the federal agencies.

J. Clarence Davies: Right.

Brian Stempeck: But for research funding on some of the safety and health aspects it's a lot smaller. I think in 2006 it was about $40 million. Where should that funding be?

J. Clarence Davies: Do you mean what should the balance be or what, well, what we need first really is a better plan than we have for what research needs to be done. In other words there's not a good plan for doing health and safety research. But there was a congressional hearing last month in which a number of both industry and nongovernmental organizations testified that something on the order of $100 million a year for health and safety testing was needed.

Brian Stempeck: So basically nearly double what the current budget is for this year?

J. Clarence Davies: Well, probably more than double because that $38 million figure is somewhat exaggerated in terms of how much of that is really health and safety research.

Brian Stempeck: What are some of the dangers here? I mean you mentioned some of the health risks. And also in the report you talk about if there is a nanotech spill, for lack of a better word, a nanotech accident somewhere, there's really no way to clean it up once it gets into that environment.

J. Clarence Davies: Except maybe using nanotech. And there is a lot of potential of the technology to clean up things that can't be cleaned up any other way. But I guess my concerns, I mean there are potential environmental concerns. And for example, some of the studies have shown some degree of toxicity of these materials to fish. But in terms of humans, as I say, their very small size and their unique behavior give a lot of cause for concern. One of the studies that disturbs me is a study that shows that if you breathe in nanomaterials and it goes to the nerve endings in your nose it goes from there up to your brain. What it does there we don't know, but I'm doubtful that it improves your thought processes.

Brian Stempeck: Is this just a case then, I mean it sounds like with these kind of health risks, is the industry just moving too fast in using nanotech in these consumer products?

J. Clarence Davies: Well, I mean that's a matter of debate, but yes I would say that certainly in some areas we're going faster than the evidence would warrant. A key factor here is exposure. I mean a lot of the uses of nanomaterials are such that they are incorporated in other materials or somehow encapsulated in, so that there is in fact no real exposure to the nanomaterials themselves. And in those cases one probably doesn't have to worry too much.

Brian Stempeck: Outside of the United States are we seeing regulations in Europe or other countries where they're acting more aggressively on nanotech?

J. Clarence Davies: The Europeans are looking carefully at regulation, in particular the U.K. and Germany. The European Union has been dealing with overall chemicals legislation called REACH. And there is an ongoing debate in Europe now as to whether that legislation is going to be adequate to deal with nanomaterials or not. We just don't know really and they don't know yet.

Brian Stempeck: All right Terry, we are out of time. Thanks a lot for being here today. We appreciate it.

J. Clarence Davies: Brian, thank you.

Brian Stempeck: For OnPoint, I'm Brian Stempeck. Thanks for watching.

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